Could Amy Coney Barrett Be Distancing Herself from the Wingnut Faction?

could amy coney barrett be distancing herself from the wingnut faction?

Could Amy Coney Barrett Be Distancing Herself from the Wingnut Faction?

Josh Gerstein has an interesting story in Politico arguing that Justice Amy Coney Barrett is taking a few tentative steps out of the ideological madhouse and that this is decidedly harshing the mellows of some of her colleagues in the carefully manufactured conservative Supreme Court majority. The story definitely goes into the file marked “To Believe When I See It,” but Gerstein’s reporting does indicate that he might be onto something. He focuses on the upcoming decision in United States v. Rahimi, which will decide whether people under domestic-violence restraining orders should be able to own guns.

(Reached for comment from an undisclosed location, Common Sense said, “Of course not. Are you out of your mind?”)

The question at the center of the spat may seem abstract: How should the court use “history and tradition” to decide modern-day legal issues? But the answer may determine how the court resolves some of the biggest cases set to be released in the coming days, particularly its latest foray into the Second Amendment right to bear arms. If the court adheres to a strict history-centric approach, as Thomas favors, it will likely strike down a federal law denying firearms to people under domestic violence restraining orders. But Barrett recently foreshadowed that she is distancing herself from that approach. If she breaks with Thomas in the gun case, known as United States v. Rahimi, and if she can persuade at least one other conservative justice to join her, they could align with the court’s three liberals to uphold the gun control law.

That seems to hang a lot on one case, but Gerstein rounds up some experts to speculate that Rahimi might be the index patient in an ongoing conservative hooley at the center of which is Barrett.

That outcome would avoid the certain political backlash that would result from a high court declaration that alleged domestic abusers have a constitutional right to carry a gun. Thomas, famous for his intransigence, might not care about such backlash, but the more pragmatically minded Barrett is surely aware of it.

Gerstein also points us to a weird copyright case from last week involving T-shirts that carried an uncomplimentary message about the size of the former president*’s...er...ah...cough...hands. While she joined Justice Clarence Thomas in rejecting the claim for a trademark, Barrett clearly had issues with how Thomas got to his conclusions.

In a concurring opinion, Barrett used unusually blunt terms to skewer Thomas’ history-based rationale for denying the trademark. She described his approach as “wrong twice over,” and she made clear that her gripes went far beyond this case alone....Barrett complained in her 15-page concurrence that her conservative colleagues have become so enamored of history that they’re now employing it even when the record is ambiguous and the purpose of embracing a retrospective approach is unclear. “The views of preceding generations can persuade, and, in the realm of stare decisis, even bind,” Barrett wrote, using the Latin term for the principle that courts should adhere to past rulings. “But tradition is not an end in itself—and I fear that the Court uses it that way here.” Barrett, a Trump appointee, added what could be interpreted as a jab at the very premise of originalism, which has been a hallmark of the conservative legal movement for decades. “It presents tradition itself as the constitutional argument.…Yet what is the theoretical justification for using tradition that way?” she wrote.

Barrett is the newest justice and her outside income is minuscule compared twith that of Thomas or Justice Sam Alito; it’s about time that somebody on that bench got fed up with the endless stories of Thomas’s living the life of the Sheik of Araby on someone else’s dime. It might as well be Barrett. She’s spent the least amount of time with the other eight, and it’s not too wild to speculate that she might have something of a chip on her shoulder due to her lickety-split confirmation while the former president* was on his way out of town. She might be inclined to assert her independence in interesting ways. She might turn out to be a new David Souter, who drifted steadily toward the middle when Thomas joined the court. It can be argued—as Jeff Greenfield does here—that Souter’s drift leftward caused subsequent Republican presidents to make sure they nominated sure things like Justice Neil Gorsuch.

Being the unpredictable maverick on this court would be a very nice sinecure to have. It’s an easy way to become revered inside the Beltway, and it would also carry considerable institutional clout. Hmmm. The story stays in the To Believe When I See It file, but right at the top.

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