Of the three judges appointed by Trump, Justice Barrett is the biggest wildcard. With Justices Gorsuch and Kavanaugh, what you see is what we get. Little of what they’ve done so far surprises me. Justice Gorsuch’s stance on LGBT rights and Indian law is evident in his lower court record. Justice Kavanaugh’s restrained and compassionate conservatism—which was indeed a hallmark of George W. Bush’s presidency—is on display in the Obamacare litigation and other cases. Again no surprises. But Judge Barrett had limited experience as a judge, had written few articles as a scholar, and had never taken any position on controversial issues. She is not a blank slate, but she is very close to a Republican Supreme Court appointment.
I really feel like Judge Barrett is solving the problem. Every point she makes is like a new day. As smart as Barrett is, and I think she’s very smart, she’s learning on the job. With this development, I think she quickly regretted some of her decisions. For example, I think she gave up voting roman catholic diocese After constant criticism of “shadow files”, as Doss v. Mills. I also think that, after criticizing Gorsuch’s substantive cannon, she felt compelled to reimagine major issues theory as some kind of semantic/textualist cannon. I wouldn’t be surprised if she casts doubt on the president’s power to remove him, although parting ways with Justice Scalia’s Morrison dissent may be difficult to bear.
More urgently, I think Justice Barrett has begun to rethink the textual, historical, and traditional framework of the Bible. the bridge. She could not even agree unreservedly with Judge Thomas’s landmark opinion. We know that she wrote a concurrence in Bruen questioning whether the relevant time frame was 1791 or 1868. But I think her agreement goes a step further. She seemed to have some doubts about Justice Thomas’s majority opinion and the whole enterprise of finding historical analogies. Judge Breyer’s decision comes as no surprise the bridge Opponents cited Barrett’s agreement favorably. Recently, in CFPB In that case, Justice Barrett distanced herself from Justice Thomas by joining Justice Kagan’s concurrence in focusing on liquidation and post-enactment practice.
Judge Barrett highlighted her differences with Justice Thomas in the case Vidal v. Elster. This case tells us more about the Court’s originalist jurisprudence than it does about trademark law. I can’t remember ever seeing a unanimous decision in such a fractured lineup. In T-shirt terms, Thomas’ majority was too small.
The distance between Justice Thomas and Justice Barrett is not that great. In another world, Chief Justice Roberts would have assigned the case to Justices Barrett or Sotomayor and it would have received a supermajority opinion, with Thomas concurring. I also suspect there may have been some consideration of flipping the vote and making Barrett’s view the majority. However, I don’t think Chief Justice Roberts and Justice Kavanaugh are willing to accept a denial of this decision. the bridge Traditional analysis—especially Laxmi on the horizon. Justice Kavanaugh, concurring with the chief justice, praised the “historical pedigree” behind the majority’s analysis. Oddly, Judge Jackson did not join Judge Barrett in dissenting from Judge Thomas. She takes no part in the fight. Why be hostile when it’s not necessary? A prudent move.
What confuses me, however, is Judge Barrett Part IIIB Vidal agree. I get it. She dislikes the traditional analysis of most people. So she came up with the means-ends balance test – which is the test the bridge Refused! Barrett wrote:
Relying solely on history and tradition seems like a way to avoid the test that judges have to make. But the rule that makes tradition decisive is itself a judge-made test. I see no good reason to use this approach rather than adopting generally applicable principles to resolve the case. (After all, there is a tradition for the latter approach as well. See, e.g., McCulloch v. Maryland, 4 Wheat. 316, 421 (1819) (adopting the standard for applying the necessary and proper clauses).) Applying broadly worded texts such as the Free Speech Clause, The courts must inevitably spell out the principles by which individual cases should be resolved. . . . Without content discrimination, trademark protection cannot exist. Content-based registration restrictions are constitutional as long as they are reasonably related to the purposes of the trademark system.
reasonable relationship to purpose whole system? quote favorably McCulloch? Who wrote this? Scalia staff or Breyer staff? You can definitely lie to me. For all of Barrett’s criticisms of most originalist analyses, she does not offer an originalist analysis of her own! This almost reads like Chief Justice Warren’s opinion in Brown—history is unclear, so we make up stories. I’d be more inclined to hold back and say, “If history isn’t clear, we’ll just follow Congress’ QED.” But that’s not what we got. I agree with Professor Mike Ramsey, who wrote: “I also don’t understand how Justice Barrett’s ‘reasonableness’ test arises from its original meaning.” Justice Kagan happily joined in this analyze.
if Vidal In the future, whenever Judge Barrett convinces herself that there are no historical analogies strong enough to resolve a constitutional case, she will dismiss any originalist analysis as a “loose analogy” or “law firm history” and instead Use some form of open-ended balancing of interests test. If you were to put Judge Barrett under a polygraph, I believe she would insist that she is an intellectually honest judge and that Thomas is unprincipled. I think the truth is that she never fully believed in originalism. Read her review of Randy Barnett’s book again. It was tepid at best. But even though she was skeptical of originalism, apart from a few articles on textualism, she never had to formulate jurisprudential support. Perhaps a decade working with Judges Easterbrook and Wood would have had an impact on her. who knows? But here we are. Hence, the blank slate. She is therefore doing what many justices on the Warren and Burger courts have done—finding history unedifying and tacitly acquiescing to common law constitutionalism.
I’m not saying Judge Barrett is going to be another Judge Souter. God forbid. She is orders of magnitude more talented than Suter. But Barrett is now emerging as one of the most powerful critics of the Supreme Court’s originalist majority — and you know, originalist critics are going to eat it up. Judge Kagan will help her every step of the way. There really is no one on the right who wants to work with her. In my view, Justice Gorsuch is not a conciliatory type—in fact, he has always been the opposite of Justice Barrett on most statutory issues. (The most recent was in Campos-Chavez.) Judge Kavanaugh could have tried to persuade Barrett in the Vidal case, but could only reach a perfunctory settlement. Barrett clearly thinks Thomas is an originalist charlatan, and we’ll see this view played out more and more. So who is left? Justice Kagan spent her first decade on the Supreme Court preaching the virtues of stare decisis, and she would spend the next decade talking about reckoning. When I read Barret’s consent, I had an image in my mind of Palpatine nurturing young Anakin Skywalker to embrace the dark side. Don’t raise the white flag just yet, but we may need to ask heaven for help.
Even more puzzling is Judge Barrett’s inconsistency. Consider her dissent with Judge Thomas last term countryman v. colorado. Barrett rejected the First Amendment test that Justice Kagan invented out of thin air. Barrett calls Kagan’s balancing test the “Goldilocks judgment.” But in Vidal She went back to a fictitious balancing test without any analysis at all. She announced the balancing test in one sentence at the end of her opinion. This is Brennanian, as was his introduction of the interlocutory review test at the end of Craig v. Bolen. At least Judge Breyer would explain why he balanced interests differently. But Barrett said nothing. In a repudiation of one of Scalia’s core tenets, she cited legislative history to determine the purpose of the copyright system! Barrett in Part IIIB Vidal Dissent from Barrett counter clerk It reads as if it were written by two different judges. In the former, she disagrees with Thomas but agrees with Kagan; in the latter, she agrees with Thomas but disagrees with Kagan. Go figure it out.
I will return to the topic above. The paradox of Judge Barrett is that she doesn’t have it all figured out yet. She learns on the job. This iterative process can create dissonant feelings, e.g. Vidal and counter clerk. This uncertainty also means her vote is indeed up for grabs. I suspect most justices have figured out how they are going to vote on the case before oral arguments. Barrett didn’t. Barrett is likely to have the largest number of justices in the majority this term. She votes in unpredictable ways. Again, stay tuned Laxmi, probably on the last day of term. I think Judge Barrett will call her back. Vidal opinion, in which Justice Kagan will also weigh in.
Finally, put down another marker, Vidal Can be used as evidence in 3-2-4 court. The court’s most conservative members stuck to the original meaning, Chief Justice Roberts and Justices Kavanaugh seized on tradition, while Justice Barrett and progressives found tradition unclear and recast the balancing test. We can see lineups like this more and more. To my knowledge, it came up twice in the emergency cases of Hamm v. Miller (2022) and United States v. Texas (2022).
