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Soothing lies from our corrupt legal academic elites

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Print, engraving, Lloyd Kenyon, 1st Baron Kenyon (1732-1802) (after George Romney) by William Holl, I (1771 – London 1838) . ‘Published Aug 1 1804 by W.Holl the proprietor, 46 Taylor’s Buildings Islington Rd and I.P. Thonison, Newport Street’. Grey reeded wooden frame.

Stanford law prof and former federal judge Michael McConnell got the Washington Post to print a bunch of garbage about how the confirmation of Amy Coney Barrett is no big deal because of reasons.

Justices come and go, and the balance of power on the Supreme Court shifts back and forth. It seldom stays the same for long. 

The last time the Supreme Court had five justices nominated by a Democrat was 1969.

The three oldest justices, and therefore the three most likely to leave the court in the coming years, are Breyer (82), Samuel Alito (70) and Clarence Thomas (72). Breyer is the most moderate of the Democratic appointees. Replacing him with a progressive Democrat would be like replacing Justice Sandra Day O’Connor with Alito (as happened in 2006). Thomas and Alito are the most conservative members of the court. Assuming that a Democrat is elected in the fall, the court could easily be dominated by its left wing again, in just a few years, even with Barrett on the bench.

If you think Alito and Thomas are going to retire voluntarily under a Democrat president you probably have a Ph.D. in political science from Trump University. Of course McConnell is no dummy: he’s just another shameless right wing liar, although the kind that lots of liberal legal academic types like, because he’s so “thoughtful” (this means not openly fascist).

Even the current court, with a solid majority of five conservative-seeming justices, has decided many of the most important cases over the past year in favor of the liberal position. Consider Bostock (interpreting Title VII to apply to same-sex and transgender discrimination), Regents (striking down Trump’s revocation of Deferred Action for Childhood Arrivals, or DACA) and Vance (allowing the New York district attorney to subpoena Trump’s financial records). This is because modern conservative legal theory is primarily about methodology rather than results.

John Roberts is no dummy either, which means he knows he has to throw liberals a bone or two now and then to stave off some future Andrew Jackson getting medieval on the Court’s composition, tenure, and jurisdiction. But when ACB replaces RBG, Roberts is no longer the Court’s median vote! See if you can figure out that math. (The odds that Barrett will turn out to be a Thomas-style zealot rather than a Roberts-version Machiavellian are . . . too high. Of course if you’re a heighten the contradictions accelerationist, this is good. Sure Social Security may soon be unconstitutional but that will lead to Real Progressive Change, eventually).

As for the claim that modern conservative legal theory is primarily about methodology rather than results, this is one of those lies that’s so spectacular that it can best be explained as a valiant if vain attempt to win a Worst McConnell in America contest.

The more obvious and trivial response to this is that conservatives ignore their methodological commitments whenever the stakes are high enough, most obviously in cases like Bush v. Gore and Shelby County (see also all “originalist” attacks on affirmative action).

The subtler and more important point is that advocating that judges adopt conservative legal methodologies is itself a reactionary political position, because conservative legal methodologies are reactionary. Originalism and textualism are reactionary by nature: indeed that’s the whole point of adopting them as methodologies! And of course one must adopt them, because it’s not like the Secret Rulebook for Valid Legal Interpretation tells you which methodologies are legitimately “legal” as opposed to illegitimately “political.” (This is why anyone who tells you he opposes “results-oriented jurisprudence” is either a moron or a liar. I know which one this McConnell is anyway).

Then there’s a bunch of nonsense about how ACB won’t reverse Roe v. Wade because that would make the libs mad or something but I can’t do more of this this morning. ETA: Forgot to add that he also claims putting ACB on the SCOTUS won’t lead to striking down the ACA, because the legal arguments for doing so are so terrible, even though ACB herself has said in print that she accepts those arguments!

I hate these people so much.

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