After Birthplace Citizenship Case, The Conservative Legal Movement Needs To Raise Its Standards

[Bigun]

After Birthplace Citizenship Case, The Conservative Legal Movement Needs To Raise Its Standards

In the post-judicial-filibuster world, intellectual adherence to textualism, in and of itself, is no longer sufficient for Republican Supreme Court nominees.

The Supreme Court’s 5-4 decision last month in Trump v. Barbara declaring birthplace citizenship a constitutional right — authored by Chief Justice John Roberts and supported by Justice Amy Coney Barrett and the court’s three liberals — elicited a wave of pointed conservative criticism.

The critiques began in the case’s dissents. Justice Samuel Alito called the ruling “a serious mistake.” Justice Clarence Thomas said it “devalues” citizenship. Even conservative legal scholars who admire Roberts and Barrett acknowledge that Thomas’ historical analysis of the 14th Amendment was far more compelling than the thin originalism of the chief’s opinion. Movement conservatives, for their part, are outraged by the decision, which they feel was not only wrong, but wrong in the peculiarly Roe-ish way of extra-constitutionally placing a legitimate political question outside the reach of the nation’s elected lawmakers.

The Republican legal establishment has tried to defend — or at least downplay — Roberts’ ruling and Barrett’s vote. Their arguments — that Barbara only upholds the status quo or that the ruling is #akshually Donald Trump’s fault — have utterly failed to assuage conservatives’ frustration. Indeed, they seem only to be exacerbating the MAGA right’s sense of elite legalistic betrayal. It is urgently important for Republican decision-makers — on Capitol Hill, in the Trump administration, and especially in the originalist/textualist conservative legal movement — to understand why — and what to do about it.

The heart of the dispute is the question of what the Supreme Court is. In the intellectual fantasies of many originalist, textualist lawyers, the court is an apolitical, judicial umpire — merely calling balls and strikes, in Roberts’ famous framing. In the real world, however, the court (very much including the Roberts Court) is America’s unelected super-legislature, redrawing the strike zone however and whenever they please. ...

Rest at headline link

[Bigun]

Money quote:

In the real world, however, the court (very much including the Roberts Court) is America’s unelected super-legislature, redrawing the strike zone however and whenever they please.

[Cyber Liberty]

The SCOTUS has been wandering away from Textural decisions for quite a long time (IE the Warren Court), but it's becoming a big issue now because most of the Justices now have been appointed by Republican Presidents, and the conservative electorate is dismayed by the Court's willingness to grasp leftist straws to drive the government to port.

[DefiantMassRINO]

Judicial nominees are not getting the job done.

Hamstring the courts by codifying something in a Constutional amendment.

Act!  Stop talking, Congressional Republicans!

[libertybele]

Judicial nominees are not getting the job done.

Hamstring the courts by codifying something in a Constutional amendment.

Act!  Stop talking, Congressional Republicans!

That would be a surprising and nice change.

[Fishrrman]

I'm going to again ask a question I posed yesterday (or the day before, the post seems to have been removed):
Do we really NEED "a supreme court" any more?

It's all political now, fellow Briefers.
There is no escaping that, even in the court system, from the lowest municipal court right up to "the top".

To expect decisions from the court based on the proposition that they'll be "non-political, decided on the basis of law" ... well, those days are gone. And they're never coming back.

So... I'll repeat a question an exiled Russian guy asked (I believe in a letter from Berlin, in the nineteen-teens):
"What is to be done?"