Wednesday , October 28 2020

Is there room for any surprises from Barrett

Here is a paradox. It is pretty easy to predict the voting patterns of new Supreme Court justices. But it can be exceedingly difficult to predict the votes of justices in specific cases, which means that it can be difficult as well to predict how those cases are going to be decided.
When President Bill Clinton appointed Stephen Breyer to the Supreme Court in 1994, those who knew Breyer’s work knew that his voting patterns would be moderately liberal — more centrist than those of progressive heroes Justices Thurgood Marshall and William Brennan, but to the left, for sure, of Justice Antonin Scalia. And when President George W Bush appointed John Roberts as chief justice in 2005, it was clear, from Roberts’ record, that his voting patterns would be moderately conservative — distinctly more conservative than those of Breyer, but distinctly less so than those of Scalia.
Something similar can be said about every Supreme Court nominee over the last half-century.
A careful effort to test whether legal experts are good at forecasting the decisions of the Supreme Court found that such experts were right just 59.1 percent of the time. That’s better than flipping a coin — but it’s not a lot better.
Judge Amy Coney Barrett’s background shows unmistakably conservative inclinations, and it is a good bet that she would count, broadly speaking, as a conservative justice. But would she vote to strike down the Affordable Care Act, the 2010 healthcare law widely known as Obamacare? To forbid any and all affirmative action programs? Would she take a strong stand against gun control laws? Would she give more protection to commercial advertising?
On these questions, any answer would be speculative. Even though Barrett is highly likely to show conservative voting patterns, and even if we know the same about the five other Republican appointees, it is hard to be certain how they will vote in individual cases. There are three main reasons.
The first is that even if justices can be characterised as conservative, they might have very different views about their appropriate judicial role and in particular about their obligation to respect the court’s own precedents. For example, Chief Justice Roberts insists on that obligation — far more so than (say) Justice Clarence Thomas, who is not reluctant to overrule precedents if he thinks that they are wrong. (The record of a lower court judge is not very informative, because such judges are bound by Supreme Court rulings.)
Preliminary signs suggest that with respect to precedent, Justice Brett Kavanaugh may be aligned with Roberts, and that Justice Neil Gorsuch may take Thomas’s approach. On this count, Barrett’s approach remains unclear. The second reason is that even if a justice’s voting patterns are predictably conservative or liberal, his or her views on particular issues, and on particular cases, might turn out to be surprising.
It looks as if Gorsuch may have libertarian leanings, helping to explain his decisive vote, in 2020, to protect a Native American against prosecution in state court. “Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” Gorsuch wrote. “Because Congress has not said otherwise, we hold the government to its word.”
Does Barrett have libertarian leanings as well? That, too, is unclear.

—Bloomberg

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