Balls and strikes, strikes and balls

The thing is, we’re all legal realists even if we have to play our little games for a couple weeks to get that sweet life-tenured appointment:

Amy Coney Barrett, when asked in 2016 whether a Obama should be able to appoint a Supreme Court justice in a presidential year, said it's inappropriate to replace a conservative justice with one who would "dramatically flip the balance of power." pic.twitter.com/iWiK5KCRiI— RBG hired only one black law clerk in 40 years (@OrganizingPow3r) September 23, 2020

Sure, we’re all part of the same hypocrisy, but note that Barrett takes for granted that there are two ideological teams on the Supreme Court and given contemporary norms a justice’s partisan affiliation will predict their vote in politically salient cases the overwhelming majority of the time. And so does everyone else, because if anyone thought differently Merrick Garland would be on the Supreme Court right now. But we’re in for a month or so of people (Barrett included) lying about this and reporters pretending to take them seriously. Because, after all, if we acknowledge that top-level appellate judges are just doing policy when they decide politically salient cases, people might start asking uncomfortable questions about whether a Democratic Congress should use its Article III powers rather than just accepting 6 unaccountable lawyers refusing to let them govern.

I linked to it earlier, but make sure to read Barrett’s fawning review of Randy Barnett’s recent treatise The Constitution Enacted Mr. Robert Nozick’s Anarchy, State, and Utopia, which totally isn’t political if you throw the word “originalism” in there occasionally.