By David B. Rivkin Jr. and Andrew M. Grossman

July 23, 2021, in the Wall Street Journal

As liberals lick their wounds from the recent Supreme Court term, a small but noisy band on the right has launched a dissent against the conservative legal movement that produced the court’s majority. They want a new jurisprudence of “moral substance” that elevates conservative results over legalistic or procedural questions such as individual rights, limited government and separation of powers. Some advocates call this idea “common good originalism,” but it isn’t originalism. It’s no different from the raw-power judicial activism conservatives have railed against for decades as unaccountable, unwise and dangerous.

The “common good” pitch arrived nearly full-born in a 2020 essay by Harvard law professor Adrian Vermeule. A brilliant eccentric, Mr. Vermeule is best known for his advocacy of unchecked presidential and administrative supremacy and for the incorporation of Catholicism into civil law, which he calls integralism and critics call theocracy.

Mr. Vermeule is skeptical of law, restraints on government and the Enlightenment generally. He describes originalism as “an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.” To that end, he would give less emphasis to “particular written instruments” like the Constitution and more to “moral principles that conduce to the common good.” A web link to Thomas Aquinas ’ “Summa Theologica” suggests what he has in mind.

A handful of populist conservatives— Hadley Arkes, Josh Hammer, Matthew Peterson and Garrett Snedeker —took up the “common good” banner in an essay published in March. Frustrated that conservatives can’t seem to win the culture war no matter how many judges they appoint, they fault the conservative justices’ legal formalism as morally denuded and counterproductive to conservative ends. But they part with Mr. Vermeule by avoiding sectarianism in favor of vague references to “moral truth” and in branding their enterprise as a variant of originalism, one centered on the Constitution’s preamble and its reference to “the general welfare.”

As with liberal talk about the “living Constitution,” the high-minded rhetoric conceals an assertion of unbridled power. Liberals, the quartet justly complain, rack up victories because they are unabashed about enforcing their own moral purposes. That’s “a form of tyranny,” to which they urge conservatives to respond in kind by remaining cognizant of results and not splitting hairs (and votes) over arcane matters of legal interpretation.

That is a far cry from originalism, the interpretive philosophy Justice Antonin Scalia championed. Scalia looked to the plain meaning of the words in the Constitution at the time they were enacted. He also championed textualism, which applies the same approach to statutory interpretation. The common gooders, by contrast, would put a thumb on the scale (or, when necessary, a brick) to reach what they believe are conservative ends. They say that anything less is “morally neutered.”

But originalism and textualism defer to the morality wrought in the law by those who enacted it. The duty of a judge in a system of self-government is to exercise “neither Force nor Will, but merely judgment,” Alexander Hamilton wrote in Federalist No. 78. Or as Scalia put it in his dissent from Planned Parenthood v. Casey (1992), “Value judgments . . . should be voted on, not dictated.”

The Constitution doesn’t codify the common good, let alone appoint judges as its inquisitors. The Framers, as students of history, understood that mankind is fallible and that a government powerful enough to prescribe moral truth could achieve only tyranny. Rather than put their faith in the beneficence of statesmen, they established a structure that pits faction against faction to “secure the blessings of liberty,” as the preamble puts it. James Madison thought self-government “presupposes” public virtue, which can’t be dictated, only sown in the soil of freedom.

As in theory, so too in practice. Moral truth isn’t the output of any government program or court decision. It is cultivated by families, communities and civil society. It has long been the progressive tendency to seek a governmental mandate for the perfection of man and the conservative tendency to resist. The court decisions that social conservatives bemoan—from Roe v. Wade on down—can’t be criticized for failing to take a position on moral truth, only for imposing a progressive vision by judicial fiat. A jurisprudence of restraint, one that recognizes the proper limits of government, preserves the space necessary to practice moral values—ask the Little Sisters of the Poor or Catholic Social Services of Philadelphia.

There is no contradiction between the conservative legal movement’s pursuit of limited government and the common-gooders’ substantive ends. Genuine limits on government power protect the dignity and worth of the human person. The court’s history proves the point. When it has traded away constitutional command for popular notions of the common good, the result has been moral tragedy. Buck v. Bell (1927) approved compulsory sterilization of the “manifestly unfit” as a “benefit . . . to society.” Kelo v. New London (2005) regarded government’s taking homes from families for the benefit of a private corporation as “the achievement of a public good.” Yet the common-good quartet deride “the pursuit of limited government” as amoral, a hobbyhorse of the “individual liberty-obsessed.”

One might excuse these objections if a results-oriented jurisprudence promised some practical benefit, but it doesn’t. The success of the conservative legal movement is evident in the five Supreme Court justices, and scores of lower-court judges, who have described themselves as originalists. No jurist to date has claimed the “common good” mantle.

And originalism delivers results. In the past several months, self-consciously originalist decisions have fortified property rights, limited unaccountable bureaucracy, strengthened protections for freedom of association, recognized young adults’ Second Amendment rights, and expanded the freedom of religious practice. What is to be gained from abandoning originalism now, at the apex (at least to date) of its influence?

The critics’ main answer is to assail the court’s decision in Bostock v. Clayton County (2020), which interpreted the Civil Rights Act of 1964 to permit employment-discrimination claims based on sexual orientation or transgender status. Yet the Bostock dissenters, led by Justice Samuel Alito, faulted Justice Neil Gorsuch’s decision not for its embrace of textualism but for doing textualism badly. As Ed Whalen of the Ethics & Public Policy Center observed: “A bungling carpenter should not lead you to condemn the craft of carpentry.”

The high court in recent years has moved away from approaches that often sacrificed the principles of limited government to popular fashion or expert opinion. Fostering division among conservatives threatens that project at a time of special peril, as progressives march through the institutions of power. The chief obstacles to the left’s ambitions are the Constitution and a judiciary that withstands the pressure to read the enthusiasms of the elite into the law. If conservatives seeking easy victories succumb to the allure of facile judicial activism, those barriers will be breached.

For his part, Mr. Vermeule takes inspiration from an 1892 encyclical in which Pope Leo XIII “urged French Catholics to rally to the Third French Republic in order to transform it from within.” He imagines American Catholics will eventually co-opt “executive-type bureaucracies” to effect a “restoration of Christendom.” Such a ralliement seems far less likely in the U.S. than in France, but it failed there too.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/supreme-court-conservative-liberal-originalist-vermeule-11627046671

Ideological lines turn out to be more fluid than partisans had imagined when Barrett was named.

By David B. Rivkin Jr. and Andrew M. Grossman

July 1, 2021, in the Wall Street Journal

‘Every time a new justice comes to the Supreme Court,” Justice Byron White used to say, “it’s a different court.” Activists expected that to be especially true when Justice Amy Coney Barrett arrived last year. The leftist pressure group Demand Justice denounced the nominee to succeed Justice Ruth Bader Ginsburg as “a far-right, activist judge whose confirmation would threaten to upend the lives of millions of Americans” and predicted her vote would doom ObamaCare.

Reality is seldom so simplistic. ObamaCare survived California v. Texas with a 7-2 majority, including Justice Barrett. Of the 65 cases the court reviewed this term, it decided only nine by 6-3 votes along conventional ideological lines, and only three of those could fairly be described as involving hot-button political controversies. One was Cedar Point Nursery v. Hassid, which held that a California labor regulation requiring agricultural employers to allow labor organizers on their property constituted “a per se physical taking” for which the employers were entitled to just compensation. The others were decided on Thursday as the term ended: Brnovich v. Democratic National Committee on election regulation and Americans for Prosperity Foundation v. Bonta on forced disclosure of nonprofit donors.

Yet it’s true the court has entered a new phase—one characterized by modest conservative victories, unpredictable alignments of justices, and surprising unanimous judgments. The driving forces are doctrinal differences among the court’s six conservatives, Chief Justice John Roberts’s preference for incremental rather than sweeping change, and the embrace across ideological lines of the principle that judges should follow the language of the law. As Justice Elena Kagan said in 2015, “We’re all textualists now.”

The same day the court ruled in favor of ObamaCare, it unanimously held that Philadelphia had violated the First Amendment by decreeing that a Catholic foster-care agency couldn’t operate in the city unless it certified gay couples. The deeper issue was the fate of Employment Division v. Smith (1990), a landmark decision holding that generally applicable laws burdening religious practice don’t violate free exercise, no matter that the burden may be great and the government’s interest slight.

In Fulton v. Philadelphia, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch voted to overturn Smith. Chief Justice Roberts’s opinion for the other six justices didn’t go that far, but it remade the doctrine by holding that religious conduct must be treated no worse than equivalent secular conduct. That means a law isn’t “generally applicable” under Smith if it permits secular exceptions.

Fulton is a victory mainly for the chief justice’s incrementalism, which has its virtues—among them that it makes the court’s rulings easier for the losing side to accept. It’s no small matter that the court was able to rule unanimously for religious freedom in a case widely expected to be contentious. At the same time, Fulton makes Smith easier to overturn by weakening its rationale and reliance on its sweeping rule. In a concurrence, Justices Barrett and Brett Kavanaugh suggested they are open to doing so.

Fulton wasn’t the only surprising show of unanimity. In Caniglia v. Strom, all nine justices rejected a “community caretaking” exception to the Fourth Amendment’s warrant requirements for home searches—a case that might have splintered on concerns about gun violence or the needs of law enforcement. Twice the court unanimously overruled immigration decisions from the Ninth U.S. Circuit Court of Appeals favoring aliens; one of those decisions was written by Justice Sonia Sotomayor.

Other unanimous decisions rejected expansion of recent sentencing reductions for crack offenders, authorized money damages against state officials who violate the Religious Freedom Restoration Act, limited human-rights suits premised on foreign conduct, recognized First Amendment protection for a public-school student’s out-of-school speech, and declined to tighten jurisdictional limits on suits against major corporations. (So much for claims that the Roberts Court is in thrall to big business.)

Behind much of this agreement is the court’s convergence on textualism, the method of interpretation Justice Antonin Scalia advocated as a corrective to judicial policy making. The two unanimous immigration cases, as well as the crack-sentencing one, elevated clear statutory text over policy arguments. Likely the court’s outnumbered liberals have come to realize that only textualist reasoning can achieve a majority on today’s court.

There’s an asymmetry to this. Liberal justices’ methodological flexibility enables them to vote strategically with whichever conservative colleagues favor the most congenial result. Conservatives justices tend to be exacting on questions of text and doctrine, which can split their votes even when they agree on central issues or approach. Yet political conservatives can take heart from the court’s actions this term—and look optimistically toward the next. The justices agreed to hear cases in the 2021-22 term that give them opportunities to scale back precedents on abortion and expand them on gun rights.

The clearest area of positive reform this term concerns Congress’s attempts to shield executive-branch agencies from presidential control and democratic accountability. In U.S. v. Arthrex, the court found a constitutional violation in a scheme authorizing patent judges to render decisions free from review by the head of the Patent and Trademark Office, an officer subject to presidential oversight. In Collins v. Yellen, it held unconstitutional a restriction on presidential removal of the head of the Federal Housing Finance Agency.

The court invalidated only the offensive restrictions. But that limited remedy overcomes the principal objection—“widespread disruption”—to restoring presidential control by overruling the entire line of cases that authorize the headless “fourth branch” of government. That has been a central goal of the conservative legal movement since the 1970s.

To be sure, incrementalism can go too far. Some of the chief justice’s opinions, including Arthrex, are so carefully hedged that the rules they announce are little more than that one party prevailed and the other lost. A similar complaint can be leveled at Justice Stephen Breyer’s 8-1 opinion in the student-speech case Mahanoy Area School District v. B.L., which provides little guidance for lower courts or school administrators. Justice Alito offered more in a concurrence, but only Justice Gorsuch joined it. Likewise, Justice Breyer’s opinion in the ObamaCare case declined to rule on the merits, holding instead the challenges lacked standing yet without addressing their central argument to the contrary.

All these opinions were assigned by the chief justice and joined in full by his most junior colleagues, Justices Kavanaugh and Barrett. They are rightly concerned about overreaching and appear resolved in each case to decide no more than need be decided. Judicial restraint is essential and admirable, but clarity about the law is necessary for the rule of law to function. As the new justices gain confidence, the court should strike a truer balance.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/a-cautiously-conservative-supreme-court-11625164373

By David B. Rivkin Jr. and Andrew M. Grossman

April 29, 2021, in the Wall Street Journal

The “Trump judiciary” is corrupt, Sen. Sheldon Whitehouse claims, and the remedy is to scrutinize parties presenting legal arguments in friend-of-the-court, or amicus, briefs. The proposal wouldn’t make the courts any cleaner, but it would violate the First Amendment. It is also part and parcel of the broader Democrat-driven effort to politicize and intimidate the judiciary.

Amicus briefs are a fixture of litigation, particularly in appellate cases presenting broad and important legal questions. While the parties to a case present their positions in their own briefings, amici inform the courts with additional perspectives and analysis. Typical amicus briefs address the history of a constitutional provision or statute, dive deep into legal doctrine and precedent, or argue about the practical consequences of approaches the court might take. Many are filed by, or on behalf of, legal scholars. At the Supreme Court, the justices often question lawyers on points raised by amici, and they occasionally engage amicus-brief arguments in written opinions.

Where others see public-spirited legal advocacy, Mr. Whitehouse sees a plot. In a 2019 amicus brief of his own, the senator, joined by four Senate Democratic colleagues, denounced amici supporting a gun owner denied the right to transport his firearm as “marionettes controlled by a puppetmaster” as part of a “project” in partnership with the court itself to “thwart gun-safety regulations.” Amicus briefs, the senator asserted in his own, are driving a “pattern of outcomes” in which “corporate and Republican political interests prevailed.”

“The Supreme Court is not well,” the brief concluded ominously. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ ”

Mr. Whitehouse expanded on the point in a 2020 screed co-authored with Sens. Chuck Schumer and Debbie Stabenow, titled “Captured Courts.” It contends that a “network” centered on the Federalist Society—which doesn’t file amicus briefs or even take positions on cases or issues—is using such briefs “to inject its boundary-pushing theories directly into Supreme Court jurisprudence.”

The senator has introduced legislation, the Assessing Monetary Influence in the Courts of the United States Act, that would require any organization filing three or more amicus briefs a year to register with the government and disclose the identities of those who worked on the brief and of its significant donors, even those who didn’t seek to fund any particular brief. In February Mr. Whitehouse wrote a letter to the Judicial Conference Committee on Rules of Practice and Procedure, urging it to adopt the same approach through court rules.

Mr. Whitehouse’s claims of corruption are frivolous. It’s not as if there are hundred-dollar bills tucked between the pages of the PDFs. And how exactly are amici supposed to be influencing judges other than by making persuasive legal arguments? The common complaint from the bench is that too many amicus briefs are useless because they merely restate the parties’ arguments or make an empty show of support.

The courts, unlike politicians, decide cases under the law and have to show their work. So while an amicus’s argumentation can be persuasive, its support for one party or the other carries little weight. (Some amicus briefs don’t even take a position on which party should prevail.) If the courts were counting noses, the support of the Chamber of Commerce and a half-dozen other business groups should have swung things for Ford Motor Co. in the big personal-jurisdiction case the Supreme Court decided last month. But Ford lost unanimously. Federal judges, with life tenure, don’t have a campaign on the horizon or a constituency to please.

This isn’t the first time politicians have sought to compel disfavored organizations to disclose their associations. In NAACP v. Alabama (1958), the Supreme Court turned back the state’s demand that the civil-rights organization turn over its membership list. The justices recognized that the First Amendment protects citizens’ right to join together to advance beliefs and ideas and that “privacy in group association” can be essential to such advocacy, “particularly where a group espouses dissident beliefs.” The court has since consistently subjected disclosure requirements implicating associational rights to “exacting scrutiny,” requiring that disclosure further an important governmental interest like combating fraud or corruption or preserving election integrity.

The courts already require amici to disclose whether a party to the case wrote its briefs or made any contributions intended to fund them, and those requirements further the courts’ interests in preventing parties to a case from using amicus briefs as supplements to their own briefing. By contrast, donors who make general contributions to an organization—whether the Chamber of Commerce or the NAACP Legal Defense and Educational Fund—aren’t putting themselves before the court. Whether an argument presented by an amicus sinks or swims turns on its merit, not who contributed to its filer’s operating expenses. Perversely, Mr. Whitehouse’s proposal would cement into law the opposite presumption, with predictably corrosive consequences for the public’s view of the judiciary and the law.

That is the objective. With a conservative majority on the Supreme Court, and many originalist and textualist judges now serving on courts of appeals, Mr. Whitehouse understands that the policy-driven mode of judging that underpins so many progressive legal victories is on the wane. So he spelled out a new strategy in “Captured Courts”: attack the conservative legal movement and tar the judges who share its principles with made-up claims of corruption. Donor disclosure is the fodder for the attacks.

The damage to Americans’ freedom would be substantial. Organizations advocating on all sides of controversial issues would be forced to publicize their supporters, even ones who may disagree with those particular briefs and positions. They would be targeted for harassment, as practically anyone taking a controversial stand today is, and many would curtail their associations with groups that file amicus briefs.

The endgame, per the senator, is to dry up support for what he regards as “unpopular and self-serving positions.” The First Amendment exists precisely to protect the right to take unpopular positions.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/sheldon-whitehouse-is-no-friend-of-the-courts-11619713971

By David B. Rivkin Jr. and Andrew M. Grossman

Nov. 6, 2020, in the Wall Street Journal

Whoever first quipped “It’s all over but the counting” forgot about the lawyers. Over the past year, Democrats and their allies marched through state after state in an unprecedented legal campaign to upend longstanding rules of election administration. The result is more uncertainty than ever over the basic rules of voting, and an increased likelihood that races will have to be called by the courts. Although it’s too early to say for certain, that may include the presidential election.

The battle lines are being drawn in states President Trump needs to win. Pennsylvania provides a typical illustration. In 2019 the state overhauled its election code to allow everyone to vote by absentee ballot. What had been a relatively restrictive regime, with early deadlines and limited availability, was transformed into one of the most liberal in the nation, requiring only that ballots be received by the statewide voting deadline, 8 p.m. on Election Day.

Even that wouldn’t hold. After three lawsuits to extend the deadline struck out this summer, the Pennsylvania Democratic Party hit a home run on the fourth at-bat. What changed was that the secretary of state, charged with defending state law, switched sides to support her own political party. The Pennsylvania Supreme Court held that the ballot-receipt deadline, established by state law, violated the state constitution’s “Free and Equal Election Clause” and legislated a three-day extension along with a presumption of timeliness for unpostmarked ballots received by Friday. It dismissed out of hand arguments that the U.S. Constitution’s Elections and Electors clauses vest exclusive authority in state legislatures to set the rules of federal elections that can’t be rewritten by state judges or executive-branch officials.

The U.S. Supreme Court split evenly on requests by the state Republican Party and the GOP-controlled Legislature to block the lower-court ruling—effectively denying them. But both have asked the court to review the case on the merits, and the Trump campaign filed a motion on Wednesday to join that case as a party. If Pennsylvania is close, the Biden campaign will join the other side, creating a 2020 reincarnation of Bush v. Gore.

We’ve come to this pass because of Democratic politicians’ recklessness and the Supreme Court’s timidity. Democrats knew from the beginning that it was risky for state courts to shift the rules of federal elections, because voters might rely on state-court decisions later overturned under federal law. The justices also could have avoided the problem by deciding the issue before Election Day, when voters still had the opportunity to get their ballots in on time according to the rules.

In this case, Chief Justice John Roberts’s inclination to duck politically charged cases may prove self-defeating. If the court has to step in now, after the votes have been cast and counted, a political storm could become a hurricane.

Republicans filed two Election Day lawsuits in Pennsylvania challenging local election officials’ disparate treatment of defective mail-in ballots. While state law doesn’t permit mail-in voters to be notified of defects with their ballots—doing so would interfere with the timing and confidentiality of the counting process—officials in several counties apparently contacted voters to allow them to cure defects. The problem, aside from violating state law, is that this treats voters differently depending on where in the state they live, in contravention of equal-protection principles. It’s little different from the gerrymandered recount the high court rejected in Bush v. Gore.

The backdrop in Arizona is a long-running lawsuit by the Democratic National Committee challenging the state’s requirement (shared by most states) that voters cast their ballots in assigned precincts, along with its prohibition on “ballot harvesting,” the collection of ballots by parties outside the voter’s family or household. The Ninth U.S. Circuit Court of Appeals ruled in favor of the Democrats and enjoined both policies in 2016, but the Supreme Court blocked the injunction a day later, with no recorded dissents.

The litigation dragged on. After a 10-day trial, a district court held that neither of these policies violates the Voting Rights Act. The Ninth Circuit reversed, but it stayed its own decision, anticipating that the Supreme Court would do so if it didn’t. The Supreme Court agreed last month to hear the state’s appeal, but it has yet to schedule arguments in the case. Meanwhile, Democrats stand ready to challenge the disqualification of wrong-precinct votes if that’s necessary to nudge up the numbers.

The presidential race may require legal decisions resolving such issues, as well as recounts and all the additional questions they implicate, to be decided in as many as half a dozen states. Manual recounts may be requested in several states, adding additional delays to the overall process. The Trump campaign has already filed lawsuits challenging various aspects of ballot handling and counting in Michigan and Georgia; suits in Nevada and Arizona may follow. Every case will have to be decided before Dec. 8, the federal statutory “safe harbor” deadline for states to appoint elector slates, or, at the absolute latest, by Dec. 14, when the Electoral College votes.

The media is already accusing the Trump campaign of attempting to litigate its way to victory, but practically every issue in play arises from the Democrats’ march through the courts in the run-up to Election Day. For all the cries of “disenfranchisement,” both sides agree that every lawful ballot should be counted. But after so many conflicting court decisions over the past year, what’s uncertain now is the law, and there’s no dishonor in asking the courts to say what it is.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin has served in the Justice Department and the White House Counsel’s Office.

Source: https://www.wsj.com/articles/another-election-goes-to-court-11604618993?mod=e2two

By David B. Rivkin Jr. and Andrew M. Grossman

Sept. 26, 2020, in the Wall Street Journal

It speaks volumes that the early opponents of Judge Amy Coney Barrett’s confirmation have almost nothing to say about the work that has defined her career. Her scholarly and judicial writings place her at the center of the mainstream consensus on the judge’s role as an arbiter, not a lawmaker, who abides by the duty to enforce the law as written.

“A faithful judge resists the temptation to conflate the meaning of the Constitution with the judge’s own political preference,” she wrote in a 2017 article, shortly before she took the bench. That requires “fidelity to the original public meaning, which serves as a constraint upon judicial decisionmaking.” Judging also requires humility, to guard against “the feeling of infallibility” that often tempts judges to stray from the law. After all, “courts are not always heroes and legislatures are not always villains. They are both capable of doing good, and they are both capable of doing harm.” Ultimately, “the measure of a court is its fair-minded application of the rule of law.”

Her opinions for the Seventh U.S. Circuit Court of Appeals show skilled legal craftsmanship and sensitivity for the people whose rights are at stake. Among her most influential decisions is Doe v. Purdue University(2019), on the rights of college students accused of sexual assault. The case involved a male student who was suspended from school and expelled from ROTC based on his girlfriend’s accusation that he had groped her while she slept. He disputed the charge, but the university refused to disclose the evidence against him, to consider exculpatory evidence, and to interview witnesses—even the accuser, whose account it deemed more “credible” than his. All this was “fundamentally unfair,” Judge Barrett concluded, falling “short of what even a high school must provide to a student facing a days-long suspension.”

The male student alleges that the university “tilted the process against men accused of sexual assault” to comply with since-rescinded U.S. Education Department guidance, and thereby discriminated against him on the basis of sex in violation of Title IX. Judge Barrett’s decision, joined by two other female judges, allows that claim to go foward.

What’s notable about the opinion is Judge Barrett’s skill in working through the complexities of the parties’ arguments—which involved disputes over technical legal matters such as standing and remedies, among many others—without losing sight of the bigger picture. Her decision was not an unalloyed win for the male student, who lost on his claim for money damages. But the persuasive force of its reasoning made it an instant landmark in the wave of litigation sparked by the 2011 Education Department guidance. More than half the courts of appeals and dozens of district-court cases have already cited it.

Judge Barrett brought the same analytical acumen to bear in Kanter v. Barr (2019). Her dissenting opinion is an originalist tour de force on the Second Amendment’s application to “felon dispossession” laws, which restrict gun ownership by convicted criminals. The majority held that the government may categorically strip even nonviolent felons of Second Amendment rights. Judge Barrett took a narrower view based on the amendment’s text and history.

Surveying laws and practice around the time of the amendment’s framing in the late 18th century, she found support only for keeping weapons from those deemed dangerous and likely to misuse them. That category, she concluded, is “simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness”—like the plaintiff, who had been convicted of mail fraud, or hypothetical felons convicted for “selling pigs without a license in Massachusetts” or “redeeming large quantities of out-of-state bottle deposits in Michigan.”

In U.S. v. Watson (2018), a Fourth Amendment case, the court considered whether police had reasonable suspicion to block a parked car based on an anonymous report that “boys” were “playing with guns” nearby. Judge Barrett, writing for a unanimous panel, concluded they didn’t. Because Indiana law permits carrying a firearm in public without a license, that tip didn’t create a reasonable suspicion of a crime, even if it might have been prudent for police to visit the scene and speak with those involved voluntarily. Judge Barrett rejected out of hand the government’s argument that a more forceful response could be justified based on the locale: “People who live in rough neighborhoods may want and, in many situations, may carry guns for protection. They should not be subject to more intrusive police practices than are those from wealthy neighborhoods.”

Judge Barrett has also been sensitive to the needs of law enforcement. In Sanzone v. Gray (2018), she joined two other judges in an unsigned opinion holding that officers were entitled to qualified immunity from money damages when a suspect pointed a gun at officers immediately before he was shot. But she has also denied immunity in a series of cases in which officers allegedly lied or fabricated evidence in warrant affidavits. Her decisions hew close to the facts and the law, neither deferring to law enforcement nor accepting unfounded claims of abuse.

Judge Barrett has been especially attuned to overreaching by administrative agencies. She joined several opinions declining to defer to government agencies’ interpretations of their own regulations—a controversial doctrine known as Auer deference, which four Supreme Court justices said last year they were prepared to overturn.

She has also been aggressive in scrutinizing agencies’ factual determinations, particularly in Social Security cases. If C.S. Lewis was right that “integrity is doing the right thing even when no one is watching,” then these decisions deserve special appreciation, because they hold the government to its burden when the outcome matters to no one but the litigants.

A final illustration of Judge Barrett’s temperament and discernment can be found in two decisions on immigration law. In Cook County v. Wolf (2020), she dissented from a panel opinion blocking the Trump administration’s “public charge” rule, which restricts admission of aliens likely to depend on public benefits. Her dissent was vindicated when the Supreme Court stayed the injunction. In Morales v. Barr (2020), however, she wrote a ruling against an administration policy preventing immigration judges from “administratively closing,” and thereby delaying, deportation cases. While the two opinions differ in their bottom-line results, what they share in common is diligent and faithful statutory analysis following the example of Justice Antonin Scalia, for whom Judge Barrett clerked.

Judge Barrett’s body of work shows her to be independent, discerning, diligent and fair. That’s why her opponents are likely to resort to personal attacks.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office.

Source: https://www.wsj.com/articles/what-kind-of-judge-is-amy-coney-barrett-11601154273

By David B. Rivking Jr. and Andrew M. Grossman

31 July 2019 in the Wall Street Journal

A federal judge in Kentucky dismissed high-school student Nicholas Sandmann’s libel suit against the Washington Post last week. That’s no vindication of the newspaper’s skewed reporting on the teen’s run-in with American Indian activist Nathan Phillips on the National Mall in January. But it’s a vindication of the First Amendment’s limitations on state libel law, which have come under scrutiny of late, including from President Trump and Justice Clarence Thomas.