Pay no attention to the fact that Amy Coney Barrett might speak in tongues. (That’s about as relevant as Brett Kavanaugh’s unbridled rage and suspected alcoholism.)
Pay no attention to the think pieces that decry criticism of Barrett’s nomination as “anti-Catholic.” (A majority of the justices on the Supreme Court are currently Catholic. And virtually all of Barrett’s critics will be voting for Joe Biden, who is Catholic.)
Pay no attention to the excessive number of flags adorning the West Wing colonnade during the President’s announcement on Saturday. (How loudly can you scream “America!” before people start getting suspicious?)
There is an apparatus—a network of institutions and organizations—that led to Donald Trump’s nomination of Amy Coney Barrett to the Supreme Court.
There is an agenda. A plan. And most people have no clue what’s really going on.
MUST WATCH: The conservative movement transforming America’s courts — Washington Post
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🏛 There Should Be No Doubt Why Trump Nominated Amy Coney Barrett
Jeffrey Toobin provides vital context for Amy Coney Barrett’s nomination, which paves the way for 6-3 conservative majority on the Supreme Court:
“As it happens, a year before Barrett’s birth, Lewis F. Powell, Jr., then a prominent lawyer in Richmond, Virginia, and later a Supreme Court Justice himself, wrote a now famous memorandum to the United States Chamber of Commerce, arguing that businesses needed to take a more aggressive hand in shaping public policy. ‘The American economic system is under broad attack,’ he wrote, from, specifically, the consumer, environmental, and labor movements. He added that ‘the campus is the single most dynamic source” of that attack. To counter it, Powell suggested that business interests should make a major financial commitment to shaping universities, so that the ‘bright young men’ of tomorrow would hear messages of support for the free-enterprise system. A little less than a decade later, a pair of law professors named Robert Bork and Antonin Scalia signed on as the first faculty advisers to a fledgling organization for conservative law students called the Federalist Society for Law and Public Policy Studies. The efforts of the Federalist Society were lavishly funded by the business interests invoked by Powell, and it has trained a generation or two of future leaders. Not all of them have been ‘bright young men.’ Some are women, including Barrett, and her confirmation would vindicate Powell’s plan and transform the Supreme Court.”
“[I]t’s worth remembering the real priorities of Trump and Mitch McConnell, the Senate Majority Leader, in this nomination. They’re happy to accommodate the anti-abortion base of the Republican Party, but an animating passion of McConnell’s career has been the deregulation of political campaigns. The Supreme Court’s Citizens United decision brought the issue to wide public attention, but McConnell has been crusading about it for decades. He wants the money spigot kept open, so that he can protect his Senate majority and the causes for which it stands. This, too, is why the Federalist Society has been so lavishly funded over the years, and why it has expanded from a mere campus organization into a national behemoth for lawyers and students. Under Republican Presidents, Federalist Society events have come to operate as auditions for judicial appointments. The corporate interests funding the growth of the Federalist Society probably weren’t especially interested in abortion, but they were almost certainly committed to crippling the regulatory state.”
(The New Yorker)
⚖️ The legal theories of Amy Coney Barrett, explained
In an interview with Vox, Keith Whittington, a conservative political theorist and friend of the Federalist Society, described Barrett’s approach:
“She’s been pretty vocally committed to originalism as really being the guiding light, more so than some others. She is more explicitly committed to the notion that one ought to be an originalist, and that it is the primary principle for judges, than Roberts is, or than Kavanaugh historically was. In that sense, she’s a little more like Thomas and Gorsuch. She has a clear judicial philosophy, and originalism is at its core.”
(Vox)
👀 The intellectual hypocrisy of originalism
Preeminent constitutional law scholar Erwin Chemerinsky explains everything you need to know about originalism:
“Conservative justices pretend that they are just following the original meaning of the constitution and deny that they are imposing their own values on the country.”
“[I]t always has been the case that supreme court decisions are a product of those sitting on the bench. The constitution was intentionally written in broad, open-ended language that rarely provides guidance for issues that must be resolved by the supreme court. What is ‘cruel and unusual punishment’ or ‘due process’ or ‘equal protection’ cannot be determined by the words of the text or the intent of its drafters, who wrote long ago for a vastly different world. What’s more, no constitutional right is absolute: constitutional cases constantly involve weighing the government’s interest against the claim of a right by some other member of society.”
“The desire for value-neutral judging in such cases is an impossible quest. The need to balance competing interests is inescapable, and a justice’s own ideology and life experiences inevitably determine how he or she – or anyone interpreting the constitution – strikes that balance. By claiming otherwise, conservatives are trying to create a smokescreen to make Americans think their decisions are based on the ‘true’ meaning of the constitution, when actually their rulings are a product of their own conservative views.”
(The Guardian)
🚨 How Trump has already transformed America's courts
“Mr Trump’s four years in office have allowed Republican lawmakers to dramatically reshape the US judicial system by installing rightwing judges at a pace almost unmatched in American history.”
“Mr Trump’s judges, carefully selected for their ideological bona fides, have already begun to reshape US law in a more conservative direction on issues as wide ranging as gun control, voting rights, environmental protections, abortion and immigration.”
“One upshot could be a scenario where a future Congress controlled by the Democrats passes legislation on climate change or healthcare, only for conservative judges to throw out those laws on the grounds of government over-reach.”
“Today, almost a third of all active federal judges on the US appeals courts were appointed by Mr Trump.”
“Even if Mr Trump serves only one term, and Republicans lose the Senate in November, the judges installed these past four years look set to serve as a bulwark of conservative power.”
(Financial Times)