Jun.20

electoral-vote.com

Dem 51

   

GOP 49

Trouble in Supreme Court Paradise?

We're in decision-a-palooza season right now, as the Supreme Court works desperately hard to try to get out of Dodge before July 1. As part of that, there was a decision announced last week that got more attention from late-night comedians than it did from the news media. With Associate Justice Clarence Thomas writing for a unanimous court, California lawyer and activist Steve Elster was denied the right to trademark the phrase "Trump too small." Elster has been printing the obvious double entendre on the front of t-shirts, which on the back run down how small Trump's (legislative) package is.

Buried in that decision was something interesting, however. Thomas, of course, wrote an originalist decision, justifying the court's ruling based on precedents of dubious relevance from a century or more in the past. Associate Justice Amy Coney Barrett agreed with the decision (remember: unanimous), but in her concurrence she ripped Thomas to shreds. "[The ruling] presents tradition itself as the constitutional argument," she writes. "Yet what is the theoretical justification for using tradition that way?" In other words, she's not so persuaded that the evidence used by Thomas is correct. To call into question Thomas' "theoretical justification" is to, in so many words, call into question originalism as a legal theory.

It is entirely plausible that Coney Barrett, though undoubtedly a conservative, really feels this way. Here is a non-exhaustive list of reasons that could be the case:

• The Justice is intellectually honest, and is unwilling to sign onto a convoluted legal approach, just because it generates the "right" results.
  
  
• The Justice prefers to craft decisions that will have staying power, and suspects that decisions rooted in the aforementioned convoluted approach will not do so, particularly given the damage this Court has already done to stare decisis.
  
  
• The Justice believes that some/many of the decisions that have come out of the Court have damaged its reputation, leading some people/government entities to largely ignore the Court, while others openly challenge existing rulings (see above).
  
  
• The Justice realizes that she will likely be on the Court for decades, and that it's going to be the younger justices that get to clean up the mess made by sloppy, problematic decisions.

Note that little of this applies to, say, Thomas, Associate Justice Samuel Alito, or Associate Justice Neil Gorsuch. They are all originalists, so they are clearly OK with a convoluted approach, and with making controversial and problematic decisions and letting the cards fall where they may. Further, at ages 75 and 73 (for Thomas and Alito), they don't much care about the reputation of the Court, or about cleaning up messes in, say, 10 years, because they will likely be gone from the bench by then.

Coney Barrett's concurrence, which has much more the tone of a dissent, has SCOTUS-watchers speculating, yet again, that we're entering a 3-3-3 era in which there are three staunch conservatives, three swing votes and three staunch liberals. You can't be sure of that, based on just one concurrence, even if the concurrence was hotter than the sun. But it's certainly worth keeping an eye on. (Z)