Talk:Amy Coney Barrett/Archive 3

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Precedent

Part 1

Identically as "squishy" as mentor w rgd overturning scotus precedents? or less so?

npr (Totenberg [1] [emphasis mine]) - ". . Judge Barrett's views on precedent, however, appear to be closer to those of Justice Clarence Thomas, who has little regard for precedent and has urged overturning many long-established decisions. Barrett's critics, for instance, point to her judicial writing in a major gun case. In 2008, the Supreme Court ruled for the first time that the Constitution guarantees the right to own a gun. But Justice Scalia, writing for the court, listed some exceptions, among them laws barring felons from owning guns. When one of those felon laws came before Judge Barrett, she dissented, maintaining that the Supreme Court didn't really mean to exclude gun ownership for felons who aren't dangerous. . ."
--Hodgdon's secret garden (talk) 19:15, 28 September 2020 (UTC)

"Amy Coney Barrett has independently argued that, given the effect of precedent on non-parties, considerations of due process may place constitutional constraints on the application of precedent. See Amy Coney Barrett, Stare Decisis and Due Process, 74 U. COLO. L. REV. 1011 (2003)"[2], page 4 of the pdf pagination. Squishy may be an oversimplification. Maybe someone with a law background can explain the details.--Epiphyllumlover (talk) 02:10, 30 September 2020 (UTC)

Yet: See barrett's "Precedent and Jurisprudential Disagreement": Precedent "promotes doctrinal stability while still accommodating pluralism on the Court. Stare decisis purports to guide a justice's decision whether to reverse or tolerate error and sometimes it does that. Sometimes, however, it functions less to handle doctrinal missteps than to mediate intense disagreements between justices about the fundamental nature of the Constitution."--Hodgdon's secret garden (talk) 13:53, 30 September 2020 (UTC)

Law.com/The National Law Journal [3] - ". . On that topic [stare decisis], Barrett has written: 'Does the court act lawlessly—or at least questionably—when it overrules precedent? I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.' . ."
--Hodgdon's secret garden (talk) 15:28, 30 September 2020 (UTC)

If you understand the details of how she decides to respect vs. overrule precedent, please summarize them for me. I don't understand the mechanism, but think it might be interesting for the article.--Epiphyllumlover (talk) 20:40, 30 September 2020 (UTC)

user:Epiphyllumlover: Personally? No clue. But a National Review writer does think he understands what her position on stare decisis is. And, he seems to be saying that she's aligned herself pretty much exactly with the position on it of her mentor (and they both are aligned with the position on stare decisis of the Supreme Court as a whole. That said, the NR commentator also hopes she overturns Roe, so---- ).--Hodgdon's secret garden (talk) 17:58, 2 October 2020 (UTC)

Are there any lawyers or paralegals reading this? Can you help with this?--Epiphyllumlover (talk) 18:11, 2 October 2020 (UTC)

This at BloombergLaw addresses the Q more clearly(?): ". . Barrett 'approaches stare decisis from a practical perspective' in her extensive academic writing on the topic, Saikrishna Prakash, law professor at the University of Virginia, said. 'She doesn’t ever say that the courts should be overturning a bunch of precedents,' Prakash said. 'She disagrees with those who want to revolutionize case law.' [Director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies Ilya] Shapiro puts her somewhere between Scalia and Thomas here. 'She’s a little more willing than he was to question precedent,' he said. 'Maybe not quite as far as Justice Thomas who hardly has any use at all for stare decisis but certainly more than Scalia.' . ."--Hodgdon's secret garden (talk) 18:25, 2 October 2020 (UTC)

user:Epiphyllumlover: She's got some wiggle room. But many observers agree she seems a bit more open to overturning precedents than Scalia, perhaps(?)

1. washingtonpost/ruthmarcus[4] - ".. no nominee has openly endorsed views as extreme as Barrett's on the doctrine of stare decisis . ."
2. washingtonmonthly[5] - ". . She respects precedent less than Antonin Scalia . ."
3. originalismblog[6] - ". . look for Barrett’s critics to obscure the fact that Barrett is defending the Court’s existing 'weak presumption' of stare decisis, not calling for a weaker version. . ." ". . Barrett explores Justice Scalia’s approach to precedent and the question whether stare decisis is compatible with originalism. She disputes the claim that originalism without stare decisis would produce chaos: 'This threat is vastly overstated, because no originalist Justice will have to choose between his principles and the kind of chaos critics predict.' In particular, a 'combination of rules—some constitutional, some statutory, and some judicially adopted—keep most challenges to precedent off the Court’s agenda.'"
4. latimes[7] - ". . has been unusually frank in her support for overturning precedents that are not in line with the Constitution. . ."
5. nymag[8] - ". . In Barrett, we can expect a justice who will decide cases from a conservative worldview, while being even less bound to precedent than her former boss and mentor. . ."
   --Hodgdon's secret garden (talk) 18:37, 2 October 2020 (UTC)

I especially like your Saikrishna Prakash source because she taught at the University of Virginia and was admitted to the bar in Virginia. He probably knows her or multiple other people who do. I support you on the inclusion of a short quote or paraphrase of his observations in the article.--Epiphyllumlover (talk) 02:32, 3 October 2020 (UTC)

Fairly recently she'd seemingly signalled an attitude of pragmatism?

apnews[9] - ". . 2017 article co-written by Barrett in the University of Pennsylvania Journal of Constitutional Law, arguing there often are pragmatic reasons not to attempt to overturn precedents even if a justice is convinced they were wrongly decided. . ."
--Hodgdon's secret garden (talk) 16:43, 3 October 2020 (UTC)

yalejournalonregulation/Notice & Comment[10] - ". . Barrett didn’t take the position that erroneous precedents must be immediately overruled. She recognized that adherence to precedent can help judges reduce decision costs, error costs, and even legitimacy costs. As to decision costs, Barrett observed that because “justices do not all share the same interpretive methodology, they do not always have an agreed-upon standard for identifying ‘error,’” precedent can serve as a means of 'mediating intense jurisprudential disagreement' between those who deploy different interpretive methodologies. It can therefore make it easier for Justices to reach decisions than it would otherwise be. As to error costs, precedent can 'force . . . a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach.' Precedent may therefore discourage overhasty votes to overrule that are themselves the product of interpretive error. Finally, as to legitimacy, Barrett noted that a “weak presumption of stare decisis” is particularly important in constitutional cases because it is 'both realistic about, and respectful of, pluralism'—it 'helps the Court navigate controversial areas by leaving space for reargument' by citizens who seek to 'push[] back against the proposition that the Constitution embodies the principles the Court says it does.' Barrett made plain that she 'agree[d] with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.' The preservation of erroneous precedents, after all, deprives people of the benefits of the rule of law set forth in the Constitution and perpetuates public misunderstanding of that law. But the qualification is important—the conflict must be clear, because there are costs to overruling as well as preserving erroneous precedents. . ."
--Hodgdon's secret garden (talk) 17:01, 3 October 2020 (UTC)

Shorthand Re barrett's scholarly take on precedents (from an AP writer):

apnews[11] - ". . Before becoming a judge, she discussed how court precedents provide welcome stability in the law. But she also seemed to leave the door open to the possibility of reversing ones about which there remained sharp disagreement. 'Once a precedent is deeply rooted,' a 2017 article in the University of Pennsylvania Journal of Constitutional Law, which Barrett co-wrote, said, 'the Court is no longer required to deal with the question of the precedent's correctness.' But it added: 'None of this is to say that a Justice cannot attempt to overturn long-established precedent. While institutional features may hinder that effort, a Justice is free to try.' . ."
--Hodgdon's secret garden (talk) 17:16, 3 October 2020 (UTC)

Precedent and Jurisprudential Disagreement - NDLScholarship scholarship.law.nd.edu › cgi › [12] "Stare decisis is a many-faceted doctrine. It originated in common law courts and worked its way into federal courts over the course of the nineteenth century. By the twentieth century, the doctrine had become a fixture in the federal judicial system. 4 That is not to say that its shape was then or is now fixed." by AC Barrett - ‎2013 - ‎Cited by 53

--Hodgdon's secret garden (talk) 00:11, 4 October 2020 (UTC)

1. lawandcrime.com [13] - barrett: "Scholars have a range of views about how the Court should behave when deciding whether to overrule constitutional precedent. Those who favor weak stare decisis tend to do so because of their methodological commitments. Thus, some living constitutionalists have argued for freedom to overrule lest precedent hinder progress, and some originalists have argued for freedom to overrule lest doctrine trump the document."
2. washingtonpost[14] - O. Carter Snead, a professor of law at the University of Notre Dame: ". . Her past scholarship, including a 2017 law review article, makes clear that she appreciates the tensions between originalism and stare decisis. There she wrote that there is nothing in originalist jurisprudence that requires justices to seek the reversal of precedents on their own initiative. . . she would carefully analyze each case on its merits, respectful of the stakes for both the rule of law and the stability of our polity . ."
3. wsj/opinion[15] ". . Our guess is that on overturning precedent she will fall in the Court’s middle—more willing than the Chief Justice but less than Justices Clarence Thomas and Neil Gorsuch . . "
   --Hodgdon's secret garden (talk) 17:27, 4 October 2020 (UTC)

Part 2

Scotus precedent

1. today's wsj[16] - ". . As a nominee for an appeals court, she also had a ready answer to questions about whether she would respect Supreme Court precedents like Roe v. Wade. 'There would be no opportunity to be a no vote on Roe,” she said and noted that “for a court of appeals, all Supreme Court precedent is super-precedent.' A Supreme Court justice, however, has the option to reconsider past precedent if the court chooses to do so, and Democrats will again try to determine whether Judge Barrett would do so on the high court. Sen. Richard Blumenthal (D., Conn.) in 2017 challenged Judge Barrett when she said that all judicial nominees agree that their feelings about a precedent shouldn’t bear on how they would decide cases. 'We hear that from a lot of nominees. And then, in all frankness, inevitably personal beliefs enter into judicial decisions.' - 'I’ve conducted myself as a professional my whole career and would continue to do so if I were confirmed,' she said."

   I'm going to add (1) At her 2017 8th Circ. bench nom hearings, she'd committed to abiding by Scotus precedents (2) if I can find it, at least: some quote of her holding forth how at Scotus level, precedents aren't suchhard&fastof lines. <oh no! as Robert Bork did within his academic legal writings! (Just kidding: I think the stance is pretty universally held(?)) Anyway, this is from the History Channel:

   [17]: ". . Bork rejected what he saw as the Court’s liberal judicial activism, including key precedents like the 'one person, one vote' principle of legislative representation, civil rights legislation and cases involving privacy rights. . ."

   --Hodgdon's secret garden (talk) 16:25, 4 October 2020 (UTC)
2. LibertyPen - At about 2:35 or so Bork says, "In Constitutional Law precedent is less important than anywhere else." --Hodgdon's secret garden (talk) 18:47, 4 October 2020 (UTC)
3. Note: She is said to have favorably cited Michael Gerhardt. Gerhardt seems to believe the following about Scotus precedent:

   [18] The Power of Precedent
   Michael J. Gerhardt
   ABSTRACT
   In this book Professor Michael Gerhardt provides the first comprehensive effort to use both social science methods and conventional legal analysis to explain the role of precedent in constitutional law. His analysis demonstrates how precedent influences more than social scientists claim, but less than most scholars claim. He further shows how precedent, broadly understood, performs multiple significant but underappreciated functions in constitutional decision making both inside courts and outside of them. Last, but not least, his analysis explains a fundamental tension in constitutional adjudication in which precedent is generally respected as an abstract principle but particular precedents rarely constrain the decisions of courts and nonjudicial actors.

   --Hodgdon's secret garden (talk) 16:43, 4 October 2020 (UTC)
4. bloomberg[19] - conservative legal scholar and former federal judge Michael McConnell in the Washington Post: Roe "the Road Runner of all precedents. Wile E. Coyote just never catches up" ; - Trump to Biden at 1st debate: "You don’t know her view on Roe v. Wade."
5. nyreviewofbooks/Noah Feldman [20] [21] - ". . Judges speak in praise of stare decisis when they want to uphold precedent. They speak about the limits of precedent when they want to make new law. . ."
6. bloomberg/noahfeldman[22] [23] - ". . Roberts, the justice who cares most about precedent right now, might be the swing vote who could save Roe — not because he thinks it’s correct, but because it’s been settled law for nearly half a century. By sticking to Roberts’s side, Kagan made sure the current decision didn’t feature all the liberals on the same side while the conservatives split. More importantly, she made sure that at least one liberal was standing up for precedent even in a case where liberals would ordinarily favor the opposite result. That’s exactly the stance that she and other liberals will want Roberts to take when the court’s other conservatives make their increasingly inevitable push to overturn Roe. . ."
   --Hodgdon's secret garden (talk) 15:10, 5 October 2020 (UTC)

I support your intention to add to the article on this topic.--Epiphyllumlover (talk) 21:49, 5 October 2020 (UTC)

For a rough sample:

In various of her academic writings overall <reference specifically>, Barrett has analyzed the role of precedent within Constitutional law. <maybe throw in here that academics in general observe how precedents are hewed to/overturned at Scotus level per ideological understanding of right vs. wrong more so than simply 'cause /x/, /y/, or /z/ are precedents and, so, have to be followed by succeeding supreme courts> In light of these writings and in view of Barrett's personal ideological leanings, commentators including <say which ones> speculate that Barrett would be more inclined to overturn liberal precedents of the Supreme Court than would its sitting chief justice, John Roberts. These same are in disagreement with each other as to whether she'd be identically inclined or less so than would Clarence Thomas (blah blah known to not have so much regard for them).

--Hodgdon's secret garden (talk) 15:39, 6 October 2020 (UTC)

maybe throw in here that academics in general observe how precedents are hewed to/overturned at Scotus level per ideological understanding of right vs. wrong more so than simply 'cause /x/, /y/, or /z/ are precedents and, so, have to be followed by succeeding supreme courts

Do you have a source for this?

in view of Barrett's personal ideological leanings

What are Barrett's personal ideological leanings and what are your sources for that?

commentators including <say which ones> speculate that Barrett would be more inclined to overturn liberal precedents of the Supreme Court than would its sitting chief justice, John Roberts.

Part of this concerns Roberts’ desire to avoid the appearance that the court is politicized. Is that an ideological leaning? Do commentators really have enough to go on with respect to Barrett’s ideological leanings, such that their speculations are more substantive than mere guesses? Also, political ideology seems to pervade this area. Those on the left who want to undermine her nomination seem more likely to speculate that her inclination to overturn precedents is alarming. Those on the right take the opposite view. Even some very learned commentators seem to be influenced in this way (e.g. Laurence Tribe). Is it proper to introduce this phenomenon into this article? What precedents a nominee is inclined to overrule is the 64 thousand dollar question that opposing senators use great ingenuity in trying to ferret out and seem to always fail. Can we really give some guidance on this issue that is more accurate than what the weather is going to be like a month from today? — Swood100 (talk) 16:37, 6 October 2020 (UTC)

>>>>>Can we [Wiki] really give some guidance on this issue [What precedents a nominee is inclined to overrule] that is more accurate than what the weather is going to be like a month from today?<<<<<

Ahh well no. (But we can encapsulate others' speculations of this type, despite this endeavor's ultimate uselessness. Eg we cover what opinion polls show. Nothing stopped Wiki from having an article based on RSes concerning speculations Re who was gonna to be nominated by Trump to fill Ginsburg's seat.)

>>>>>What are Barrett's personal ideological leanings[...]?<<<<<

Well, without beating around the bush, at the tip of her "personal" ideological leanings' top tier (at least according to the political commentary I've read) might be Barrett's personal opposition to abortion.^{Liptak, Adam (October 1, 2020). "Amy Coney Barrett, Trump's Supreme Court Pick, Signed Anti-Abortion Ad". The New York Times. Retrieved October 3, 2020. Colby Itkowitz (2020). "Who is Amy Coney Barrett, the judge at the top of Trump's list to replace Ruth Bader Ginsburg?". The Washington Post. is fervently antiabortion} Otherwise (per my vague impression garnered from news reports), I believe she may be something of a so-called Constitutional conservative.^{Refs needed.} (By the way, do note that if it turns out she's really a "closet" quasi liberal of some flavor (Think: Cardinal Bergoglio), for my own part I'd be quite pleasantly surprised.)

>>>>>Do you have a source for [precedents are hewed to/overturned at Scotus level per ideological understanding of right vs. wrong]?<<<<<

Noah Feldman @nyreviewofbooks[24] - ". . as Kavanaugh's example were intended to emphasize, liberals have cared little for the value of precedent when it comes to the high-profile moral issues . ." ". . "liberals have justified these deviations from precedent on the ground that the original decision was immoral when it was made. This kind of argument is easily adopted by contemporary conservatives, who consider Roe v. Wade wrong not only as a matter of constitutional philosophy but as a matter of morals. . ."
--Hodgdon's secret garden (talk) 15:01, 7 October 2020 (UTC)

Ahh well no. (But we can encapsulate others' speculations of this type, despite this endeavor's ultimate uselessness. Eg we cover what opinion polls show. Nothing stopped Wiki from having an article based on RSes concerning speculations Re who was gonna to be nominated by Trump to fill Ginsburg's seat.)

Speculation about who Trump is going to nominate involves sheer guessing, and everybody understands that. We can’t present sheer guesses as if those guessing have some special way of knowing, if this is not the case. I don’t oppose predictions that are grounded, such as that she will use textualism. And I think that comments she had made about past rulings which were not textually-based give us some insight into some valid predictions. But predictions untethered to something that can be demonstrated, especially dire predictions of apocalypse by someone who opposes her nomination, are problematic.

Well, without beating around the bush, at the tip of her "personal" ideological leanings' top tier (at least according to the political commentary I've read) might be Barrett's personal opposition to abortion.

Is there a general rule, safe to follow by default, that all judges are likely to rule in favor of their personal ideological leanings. If a judge says “my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge” what weight do we give that? Do we need any evidence to the contrary or are we safe in simply assuming that the statement is false?

Otherwise (per my vague impression garnered from news reports), I believe she may be something of a so-called Constitutional conservative.

Do you mean that there is evidence that she personally holds “Paleoconservative” beliefs or that there is evidence that such beliefs will influence the way she rules as a justice?

Dpminicans as a whole may have a tendency to Paleo-conservative paleoconservative belief, in that the Dominicans are an Aristotelian tradition. Because modern life involves a stronger role for cause-and-effect and time & space than Aristotle had use for, if you attempt to be an Aristotelian today you will likely end up as a Kantian. Paleoconservatives as a general rule are Kantians, and if they Hegelianize they become neo-conservatives. The time period of the Constitution and the Declaration was well before Hegel--but at a time when Kant was trendy. He incorporated contemporary ideas from others like Locke into his system, which adds to its compatibility with the founding fathers. In today's postmodern background, originalists and textualists are dependent on Kant's concept of analyticity.

The evidence against Barrett being a strict Kantian can be seen in her writings about the suspension of Habeas Corpus. She believes that it is Congress's role and not the Executive's role to define when a suspension is justified. A strict Kantian would place this power with the executive branch instead (as Kant would have given his writings on governance in general), or at least not exclude the executive branch completely. That she believes this has been repeatedly violated over the years is telling that she disagrees with other conservatives on this. What we know about her take on immigration does not put her with the paleo-conservatives either. And her address about comparison being the thief of joy is exactly how I'd expect a non-Kantian to attempt to gently prod a group of Kantians (given that Notre Dame is Dominican) to improve themselves. Another utilitarian aspect is her evaluation of precedent as being useful in mediating disagreements when justices have little else in common.

Her charismatic background puts an existentialist influence on the table. The criticism description that she is idiosyncratic[25] is the sort of criticism description you could expect to see leveled against concerning an existentialist. She doesn't seem to have anything to do with economics or sociology, which I would expect if she was a secularist existentialist. Rather instead it is a Christian existentialist influence, the sort that is not cynical at all and in an open and uncouth form would be derided by Hegelians as superstitious and primitive.

This roughly outlines three strands: Kantianism (via Dominicanism and manifested in originalism and textualism), utilitarianism, and existentialism. There may be more. On the Münchhausen trilemma I'd expect her to rest more on the axiomatic and regressive forks. In contrast a strict paleoconservative would be entirely on the axiomatic fork and a neo-conservative would be using the circular fork. For the article to be well rounded, it would be good to show examples reflecting as many influences as possible.--Epiphyllumlover (talk) 18:40, 7 October 2020 (UTC)

I don’t think that the use of “idiosyncratic” in that article was a criticism. Rather, it was intended as “not a clone of Thomas or Scalia.” — Swood100 (talk) 19:53, 7 October 2020 (UTC)

I fixed my above comment; the piece was favorable; the description was not a criticism as you noted. I added a subsection on Suspension you can review as well. Her position seems to come from originalism.--Epiphyllumlover (talk) 20:38, 7 October 2020 (UTC)

maybe throw in here that academics in general observe how precedents are hewed to/overturned at Scotus level per ideological understanding of right vs. wrong more so than simply 'cause /x/, /y/, or /z/ are precedents and, so, have to be followed by succeeding supreme courts

I think this is too simplistic a rendering of the Noah Feldman piece. It says that liberals cling to precedent in cases like Roe but have willingly departed from precedent in cases dealing with gay rights. It characterizes conservatives as being “exponents of a strand of constitutional originalism that favors overthrowing precedent in favor of the long-neglected “true” meaning of the Constitution.” Feldman does not come right out and say that this is all a smokescreen for the fact that conservatives are really influenced by the ideological content involved, just like liberals, but perhaps that’s what he means. He says that conservative judges are influenced by both constitutional philosophy and morality and that liberal judges face a conundrum. This implies a bit of nuance.

Feldman says that “Judges speak in praise of stare decisis when they want to uphold precedent. They speak about the limits of precedent when they want to make new law.” This appears to express the view that judges are craven hypocrites. Is that the opinion of “academics in general”?

Your source link cut the article off before the end and I can’t find a version anywhere that is available without a subscription, but I think that this is a nuanced area that cannot properly be characterized by the Feldman piece. — Swood100 (talk) 17:24, 7 October 2020 (UTC)

• >>>>>Do you mean that there is evidence that she personally holds “Paleoconservative” beliefs or that there is evidence that such beliefs will influence the way she rules as a justice?<<<<<

Paleo-what? lol. I'd just meant she's generally considered, by current types of conservative that are big on the Constitution, as one of their own.

1. donaldjtrump[26] (who may or may not be much "Constitutional conservative" ideologically but has their backs) - ". . Amy Coney Barrett, as a Constitutional conservative, proud Christian, .."
2. American Center for Law & Justice - "Appoint a Constitutional Conservative to the Supreme Court"
3. Rep. Sam Graves [27] - ". . Barrett is a wise choice, a Constitutional conservative who will be steadfast in her pursuit of the original intent . ."
4. &c&c --Hodgdon's secret garden (talk) 15:57, 8 October 2020 (UTC)

Well you wikilinked “constitutional conservative” to the Paleoconservative article so I assumed that’s what you meant. Is that what the term means? I don’t really know what “big on the Constitution” means. But in any event does the term refer to beliefs that will influence how she rules as a Justice, like her beliefs on textualism do? — Swood100 (talk) 17:42, 9 October 2020 (UTC)

• • politico/robertltsai[28] - ". . Ideologically, she will slot in somewhere to the right of Chief Justice John Roberts — making this the most conservative court in our lifetime. Barrett’s addition would most likely turn Justice Samuel Alito into the median justice and the person toward whom most legal arguments would have to be pitched. . . " ". . She has written that precedent operates only in a 'weak' sense, acknowledging that a textualist 'would more often find precedent in conflict with her interpretation of the Constitution' than a jurist with a more 'flexible' approach. That suggests that she would join a strong majority to sweep away precedent when she feels it is incompatible with the original meaning of the text. . ."
    --Hodgdon's secret garden (talk) 15:14, 9 October 2020 (UTC)

". . Ideologically, she will slot in somewhere to the right of Chief Justice John Roberts — making this the most conservative court in our lifetime. Barrett’s addition would most likely turn Justice Samuel Alito into the median justice and the person toward whom most legal arguments would have to be pitched. . . "

I don’t have a problem with this, as long as it is presented as the opinion of Robert L. Tsai

She has written that precedent operates only in a “weak” sense

This makes it sound like the force of precedent is less strong for her than it is for the other justices on the court but what she actually said was:

Over the years, some have lamented the Supreme Court’s willingness to overrule itself and have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule. In this Article, I point out that one virtue of the weak presumption is that it promotes doctrinal stability while still accommodating pluralism on the Court.

So she is describing the existing Supreme Court practice as involving a ‘weak’ presumption. This is quite a bit different from the implication of the article.

acknowledging that a textualist “would more often find precedent in conflict with her interpretation of the Constitution” than a jurist with a more “flexible” approach.

This is her exact quote:

It makes sense that one committed to a textualist theory would more often find precedent in conflict with her interpretation of the Constitution than would one who takes a more flexible, all-things-considered approach.

That suggests that she would join a strong majority to sweep away precedent when she feels it is incompatible with the original meaning of the text.

In the first place, if there is a strong majority then what difference does it make if she joins it? But the conclusion doesn’t follow. The decision about whether to overrule precedent is not a simple function of the number of times the interpretation is out of sync with textualism. But Barrett did allow that there could be some connection. I could see adding something to this article on this subject. How about this:

Concerning the relationship of textualism to precedent, Barrett said, “It makes sense that one committed to a textualist theory would more often find precedent in conflict with her interpretation of the Constitution than would one who takes a more flexible, all-things-considered approach.” She referenced a study by Michael Gerhardt which found that as of 1994, no two justices in that century had called for overruling more precedents than Justices Black and Scalia, both of whom were textualists, even though Black was a liberal and Scalia a conservative. Gerhardt also found that during the last eleven years of the Rehnquist court, the average number of times a Justice called for the overruling of precedent was higher for textualist Justices, with one per year coming from Ginsburg (non-textualist) up to just over two per year from Thomas (textualist). Gerhardt pointed out that the calls for overruling were not all related to textualism issues, and that one must be careful in the inferences one draws from the numbers, which “do not indicate either why or on what basis the justices urged overruling.”

References

user:Swood100: I like the text immed. above & hope u contribute it to mainspace.--Hodgdon's secret garden (talk) 00:13, 10 October 2020 (UTC)

Me too, please add it in--it must fit somewhere. As for "constitutional conservative"--that is a broader label than paleo-conservative. "Constitutional conservative" is a unifying term or category intended to appeal to both paleo- and neo- conservatives by asking different questions. A paleoconservative is typically a Kantian, while a neoconservative is typically a member of the Hegelian right or the secularist type of Existentialist, like many economists. A constitutional conservative could be any of these. An example in history would be how St. Thomas helped combine the Platonist Augustinians and the Aristotelian Dominicans into a unified Schola antiqua by asking and answering different questions than either side had been using. Paleoconservatives are more like the Dominicans and the right-leaning Hegelian sort of neoconservatives are more like the Augustinians, in broad brush strokes of how their philosophies operate. On this table, the paleoconservatives, being limited realists, fall under the second column to the left, while neoconservatives occupy the two columns to the right. A constitutional conservative could be any of the columns except the one on the far left.--Epiphyllumlover (talk) 01:46, 10 October 2020 (UTC)

user:Epiphyllumlover, I imagine there's a lot of meat to what you're saying above. It's just that I'm in no position to know for sure one way or the other. But it seems to make some kind of sense, is what I'm saying. I mean, that one term might be a subset of the other seems like a useful idea.

My effort at a more layman's attempt to articulate what u just wrote might go something like this: When a charleskrauthammer tosses off 'constitutional conservative' to categorize uschiefmagistratejohnrobert's jurisprudence (at least when roberts' isn't acting in the way krauthammer categorizes as 'institutionally')----- Ah um well, when krauthammer does something like that: What's he doin'? Talkin' ONLY to folks w/ SPECIALIZED knowledge of the various facets of conservatism?? Or, to <ahem> folks like me who are just...general readers? OK well my impression of a guy like krauthammer is that he's pro'lly doin' just a bit of both. I mean, maybe readers cognizant of the tensions among pragmatic and principled impulses that apparently have been theorized about by folks like Harvey Mansfield and Peter Berkowitz <Me: harvey & peter who?> will have synapses light up that bring up such associations when their eyes scan across the word "conservative" modified by "constitutional." But when I read this ah established lexical entry or ah fresh coinage (at the time of my reading, being unsure which of the two it is), I just think that krauthammer must be throwing out some verbal marker to represent the rightward pole of theussupremecourtmembers' "jurisprudence" in a concise, yet evocative, way: its concision contributing to the short word count of the op-ed and its evocation----- Well, "knowing" what I already "know" about politics before reading the column, my weakly pulsing synapses remind me that folks umbrella'd under various rightward-pole terminologies tend to be nativist among a slew of other isms. You know. Like that. --Hodgdon's secret garden (talk) 14:36, 10 October 2020 (UTC)

Krauthammer has a deep understanding, and then simplifies it for his audience. The difference between pragmatic and principled is another good way to put it. Another way is this chart. Neoconservatives fit in at either the top or bottom of the left hand side, while paleoconservatives fit in at the top right side. Barrett's own reasoning patterns appear adaptable to different circumstances, making her hard to pigeonhole. Another way to look at it is this table. From it you can see where my philosophical classifications come from. They also just come from general historical background knowledge, like the sort you accumulate by reading Wikipedia. As for nativism and the other isms, a number of them can be articulated using different patterns. Back to Krauthammer: I suspect he labeled her a constitutional conservative because it is the best fit for her; that such conservatives may be pluralistic like Barrett rather than fundamentalist or totalitarian with only one possible thought pattern.--Epiphyllumlover (talk) 21:02, 10 October 2020 (UTC)

Thanks, user:Epiphyllumlover. Btw-Oops! fwiw it'd been our uschiefjustice John Roberts whom krauthammer labeled in twenty twelve "jurisprudentially" "a constitutional conservative," yet "institutionally" "a custodian of the court."--Hodgdon's secret garden (talk) 23:08, 10 October 2020 (UTC)

• time[29] - ". . Her philosophy places her further to the right than Chief Justice John Roberts, who had become the ideological middle of the bench. . . In her three years on the U.S. Court of Appeals for the Seventh Circuit, Barrett was known for being a staunch conservative . ."
  --Hodgdon's secret garden (talk) 23:15, 10 October 2020 (UTC)

Part 3

Will mention her 2017 "pledge" - but how she'd be considered to have more leeway on the Scotus bench. See eg today's thehill[30] - ". . Blumenthal in a subsequent interview said another key area is Barrett’s views of precedent. 'She seems to give much less weight to well-established, long-accepted precedent when it conflicts with her positions,' he said. Barrett in a 2003 academic article cited Planned Parenthood v. Casey, which reaffirmed Roe v. Wade, as an 'erroneous decision.' In another article, she gave examples of Supreme Court cases that no justice would overturn even if they might disagree with the reasoning behind them but left Roe v. Wade off the list. During her 2017 confirmation hearing for a position on the 7th Circuit Court of Appeals, Barrett deflected Democrats’ questions by saying she would follow Supreme Court precedent. She would have much more leeway to overturn that precedent as a member of the high court, Democratic senators note. . ."
--Hodgdon's secret garden (talk) 15:43, 7 October 2020 (UTC)

Blumenthal in a subsequent interview said another key area is Barrett’s views of precedent. 'She seems to give much less weight to well-established, long-accepted precedent when it conflicts with her positions,' he said.

BlumenthaI is one of the most partisan politicians I can think of. I would call him the antithesis of somebody who can be relied on to present a reasoned, sober, balanced prediction of whether Barrett is likely to do harm to liberal causes.

Barrett in a 2003 academic article cited Planned Parenthood v. Casey, which reaffirmed Roe v. Wade, as an 'erroneous decision.'

The article in question expressed it this way:

"The questions that traditionally have occupied courts and scholars with respect to stare decisis are systemic. Courts and commentators have considered the kinds of errors that justify or even require the overruling of precedent. They have thought about the kinds of reliance interests that justify keeping an erroneous decision on the books."

Footnote 70 was attached to this:

"See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 855-57 (1992) (holding that reliance on availability of abortion counts in stare decisis calculus); id. at 956-57 (Rehnquist, C.J., dissenting) (insisting that such abstract interests do not count); Michael J. Gerhardt, The Pressure of Precedent: A Critique of the Conservative Approaches to Stare Decisis in Abortion Cases, 10 Const. Comment. 67, 78 (1993) (claiming that reliance interests at stake in Casey were even greater than plurality imagined); see also A. Goldberg, Equal Justice: The Warren Era of the Supreme Court 74 (1971) (arguing that stare decisis should be strongest when overruling precedent would contract individual freedom and weakest when overruling would expand individual freedom), quoted in Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 Cornell L. Rev. 401, 403 (1988)."

Does this qualify as Barrett referring to Casey as an ‘erroneous decision’? If not, it emphasizes how fraught this area is with partisanship masquerading as reason. Even if Barrett had said that Casey was an ‘erroneous decision’, that is always the starting point when stare decisis is being considered. What insight does that give as to how the question should be answered? Even Ginsburg criticized Roe.

In another article, she gave examples of Supreme Court cases that no justice would overturn even if they might disagree with the reasoning behind them but left Roe v. Wade off the list.

Does saying that Roe doesn’t qualify as a superprecedent say anything about whether it should be overruled?

She would have much more leeway to overturn that precedent as a member of the high court, Democratic senators note

Does the fact that Barret would have more leeway to overturn precedents as a member of the Supreme Court give us any insight into whether she will overrule any specific precedent? — Swood100 (talk) 18:23, 7 October 2020 (UTC)

At her 2017 Senate confirmation hearing for the 7th Circuit Court of Appeals, Barrett said she would follow Supreme Court precedent while on the appellate bench. As a member of the U.S. Supreme Court, Barrett, according to The Hill newspaper, would "have much more leeway" to overturn its precedents.

Actually, that was the observation of the Democrats, not The Hill: “She would have much more leeway to overturn that precedent as a member of the high court, Democratic senators note.” The Democrats are promoting alarm and that is the only purpose of such a remark. It is a truism that Supreme Court justices have more leeway than judges on the courts of appeals. What is the point of including such a statement? — Swood100 (talk) 19:19, 7 October 2020 (UTC)

Southen conservative laywer

What's up with all these arguments trying to portray conservative southern lawyer like she is mainstream. She is clearly conservative in her record. There is no need to sugar coat anything. State it like it is. The article sounds like it is trying to send a specific message. State it like it is. 202.9.46.101 (talk) 15:35, 7 October 2020 (UTC)

How would you characterize the difference between conservative and mainstream? — Swood100 (talk) 17:29, 7 October 2020 (UTC)

(1) Parents & upbringing (2) ACB herself served within [laypastoral] "headships" calling

Raised within PoP communities

PoP part of subject's upbringing.

• AP [31] - ". . Barrett’s father, Michael Coney Sr., has served as the principal leader of People of Praise’s New Orleans branch and was on the group’s all-male Board of Governors as recently as 2017. Her mother, Linda Coney, has served in the branch as a 'handmaid,' a female leader assigned to help guide other women . ."

Some Democratic party associations

1. AP - ". . While socially conservative in their understanding of family and gender, some members are deeply committed to social justice in matters of race and economics, they said. Barrett’s parents are both registered Democrats, according to Louisiana voter registration records. . ."
   --Hodgdon's secret garden (talk) 14:00, 29 September 2020 (UTC)
2. Politico[32] - ". . she pulled a Democratic ballot in the 2011 primary, when Buttigeg ran for mayor. . .
   --Hodgdon's secret garden (talk) 14:29, 29 September 2020 (UTC)

Her father is also a Roman Catholic deacon, and co-officiated along with a priest at the wedding one of his daughters according a newspaper notice. Any mention of her father's leadership role in PoP should include a mention that he is a deacon. There are a variety of reliable sources that mention his position as deacon that can be found on an Internet search.--Epiphyllumlover (talk) 19:47, 29 September 2020 (UTC)

Unless the activities of her parents directly relate to her (for example in her childhood), their activities during her adulthood are their own and would be more appropriately added to their own Wiki articles (if ever created). KinkyLipids (talk) 20:11, 29 September 2020 (UTC)

When did he become a deacon, or a PoP leader? I'm not sure we have sources giving us years for these.--Epiphyllumlover (talk) 20:27, 29 September 2020 (UTC)

Exactly. KinkyLipids (talk) 20:50, 29 September 2020 (UTC)

1. story yesterday @ catholicnewsagency[33] - ". . Mike Coney, has also been a permanent deacon for 38 years. . ." ". . Coney’s decision to become a permanent deacon was also a joint discernment, brought about by the couple’s experience with the Catholic Charismatic Renewal, a movement with a particular emphasis on the gifts of the Holy Spirit. . ." ". . By the time Coney was ordained, he and Linda had four children. After ordination, they had three more, becoming a family of nine. . ." ". . It was also after ordination that the family felt called to join People of Praise, an ecumenical lay covenant community – to which Barrett continues to belong . ."
2. stcatherineofsienaparish/deaconmike[34] - ". . Diaconate has spanned 36 years of our almost 49 years of marriage. Our call (I firmly believe it is a call to both husband and wife) came through the Charismatic Renewal. . ."
   --Hodgdon's secret garden (talk) 00:47, 30 September 2020 (UTC)

From here there is enough of a date to add the Roman Catholic deacon position and her parents' membership in PoP. We do not have enough of a date to add any leadership positions in PoP that her father or mother had. That could conceivably have come later after she had grown up. If both the diaconate and the PoP membership are mentioned, it should be indicated that the diaconate came first, and if possible how old she was when he was ordained.--Epiphyllumlover (talk) 01:23, 30 September 2020 (UTC)

I don't think that we need to bother at all with these details about her parents and People of Praise. It's all a big WP:COATRACK opportunity. Let's focus on Barrett and her facts. Elizium23 (talk) 01:24, 30 September 2020 (UTC)

Angela_Merkel#Background_and_early_life could be a model. It is non-prejudicial of her religious upbringing.--Epiphyllumlover (talk) 01:47, 30 September 2020 (UTC)

The first source is fine. It directly refers to Barrett and shows that she was raised by a deacon in the Charismatic movement from the time she was about 10. KinkyLipids (talk) 12:50, 30 September 2020 (UTC)

Nov 16, 2008 Vine & Branches [35] Life Notes - . . Servant Branch Congratulations to Tom Beckley, Mike Coney and Areta Thomas, who made the covenant of the People of Praise on September 14, 2008. . ."
--Hodgdon's secret garden (talk) 21:04, 2 October 2020 (UTC)

That was after she was grown and had left her parent's house, correct?--Epiphyllumlover (talk) 21:34, 2 October 2020 (UTC)

Hmm. May be, I'm thinking, her brother: Michael Coney Jr.?

dailymail[36] - ". . Mike Coney, 72, is a member of the Board of Governors until his term expires in August. Mike Coney was also the official branch coordinator for the group's New Orleans chapter. He is also a deacon in the Catholic church, the nearest clerical rank a married man can have to a priest. On the block where they live there are four other families who belonged to People of Praise, according to a 2005 article in the group's newsletter. Most of Coney's siblings, including her brother Michael, 32; her sisters Carrie Coney Urbanski, 42; Eileen Coney Timler, 38; and Vivian Coney Orthmann, 34; brother-in-laws Matt Urbanski, 45; John Timler, 43; and David Orthmann, 34; and sister-in-law Naomi Caneff Coney, 32, appear to be active members of the group and have been written about in its newsletter Vine and Branches. Michael and Naomi Comey previously led Christians in Mission, a part of the group's activities, as full-time members living in a house owned by the group. Coney's husband's brother, Nathan Barrett, 39, is active in the group's youth summer camp . ."
--Hodgdon's secret garden (talk) 15:03, 3 October 2020 (UTC)

Indeed, a 2011 PoPChristianCommunitynewsblog post [37] reads, "During Mike Coney’s twelve years as head of the branch."--Hodgdon's secret garden (talk) 17:31, 3 October 2020 (UTC)

apnews[38] - ". . a 2006 magazine story about Barrett’s parents that referred to Linda Coney as a 'handmaid,' a female leader assigned to help guide other women, was also deleted. The article noted that five of the Coney’s seven children were People of Praise members, though it did not say which ones. A 2012 tribute written by Jesse Barrett about his recently deceased grandfather, Eugene Geissler, also disappeared. The story recounted how Jesse Barrett’s grandparents joined the religious community in 1976 and raised 16 children in the group. . ."
--Hodgdon's secret garden (talk) 17:44, 3 October 2020 (UTC)

• washingtonpost[39] - "Amy Coney Barrett Served as a 'Handmaid' in Christian Group People of Praise." (In 2010, she was ". . one of three handmaids in the South Bend branch's northwest area . .")
  --Hodgdon's secret garden (talk) 23:49, 7 October 2020 (UTC)

Assuming this report is true (which is not proven), why should this picayune trivia be placed in the article. I don't see it. If true it is no longer true. It is undue weight and trivial. I don't see any reason for its inclusion. -- CharlesShirley (talk) 13:56, 8 October 2020 (UTC)

(cmt - It should be mentioned that ACB cannot talk about specific instances of her laypastoral counsellings in order to preserve confidentiality of her counsellees. (See also "layclergy-penitent privilege."))--Hodgdon's secret garden (talk) 14:04, 8 October 2020 (UTC)

1. nytimes[40] - ". . The Coney family’s eldest daughter, Amy, spent formative years of her childhood embedded in that intense faith community in Louisiana. . ."
   --Hodgdon's secret garden (talk) 00:18, 10 October 2020 (UTC)
2. newsweek[41] - ". . A photocopy of an undated membership directory obtained by The Times includes the Barretts and five of their seven children. Amy Coney Barrett is also listed in the directory as a "handmaid" (advisors who are now known as "women leaders") for one of the group's divisions in South Bend. . ."
   --Hodgdon's secret garden (talk) 15:33, 11 October 2020 (UTC)

Removal of sentence cited to Washington Post Oct. 6 report

I added one sentence of new content cited to an in-depth article published yesterday in the Washington Post, about Barrett's leadership position in her religious group. That content was subsequently removed by a different editor. No substantive reason for the removal was offered by the removing editor, who merely indicated that he "disputes its addition in the article."

I would like to restore the sentence. It is clearly relevant/on-topic, proper weight, very well-sourced, and exactly the kind of significant biographic information that belongs in an encyclopedia article. Neutrality^talk 04:01, 8 October 2020 (UTC)

The content is well-sourced, and belongs in the article. Snooganssnoogans (talk) 04:06, 8 October 2020 (UTC)

Seems to be non-notable trivia. Where someone lives as a student has very importance in a BLP. I'm not seeing a reason for inclusion. Mr Ernie (talk) 09:39, 8 October 2020 (UTC)

I referenced the AP & WaPo reports w rgd the subject's former laypastoral service in her parachurch community in this (diff) edit (leaving off mention of her student-housing arrangement with the couple who'd been among 1970s-era movers/shakers in the covenant community movement).--Hodgdon's secret garden (talk) 13:54, 8 October 2020 (UTC)

Assuming this report is true (which is not proven), why should this picayune trivia be placed in the article. I don't see it. If true it is no longer true. It is undue weight and trivial. I don't see any reason for its inclusion. -- CharlesShirley (talk) 13:56, 8 October 2020 (UTC)

I have read what everyone is saying and no one has given a substantive reason for its inclusion other than something along the lines of "It is trivia, but I think it should be in the article". No, that is not a substantive reason. I have not read a reason for the trivia. None. Nada. I do agree it is enormously trivial and insignificant though. -- CharlesShirley (talk) 14:03, 8 October 2020 (UTC)

If someone serves in a leadership position in a religious group, it usually goes into Wikipedia bios without any controversy (provided it's well-sourced). It's basic bio info. Snooganssnoogans (talk) 14:23, 8 October 2020 (UTC)

There is no doubt that Snooganssnoogans is correct. This information is biographical in nature and belongs in the bio. It is common practice to include such info. Go4thProsper (talk) 19:18, 8 October 2020 (UTC)

The sentence being contested has two main separate components ("While a law student, Barrett lived at the home of the group's co-founder Kevin Ranaghan and his wife, Dorothy") and "in 2010, a group directory listed Barrett as a 'handmaid'" with some additional details about what that term meant in the group and how the group later stopped using that term. We could separate these out. Neutrality gives four different reasons for thinking the information should be in the article. His four reasons are that it is (1) "clearly relevant/on-topic" (2) "proper weight" (3) "very well-sourced" and (4) "exactly the kind of significant biographic information that belongs in an encyclopedia article." I agree with (3) that the information is very well-sourced. I don't have an opinion one way or the other on claim (2), that it is of proper weight. On (1) and (4), my initial reaction to the idea that where she lived when she was a law student is "clearly relevant/on-topic" and "exactly the kind of significant biographic information that belongs in an encyclopedia article" is that I don't get the force of those assertions. I get from the adjectives ("clearly" and "exactly") that it really very, very strongly seems self-evident to the editor who put that sentence in the article that it just obviously belongs here. But, it doesn't strike me that way. I am more in the camp of an initial reaction of "gosh, seems like meaningless trivia". So, would need more reason to believe that it clearly belongs in the article. It doesn't seem that way to me. The second component (the claim about how she was described in a group directory in 2010 and how the organization used to use one term and now it uses another one) I'd say the same things about. Novellasyes (talk) 14:30, 8 October 2020 (UTC)

cmt - For what it's worth, Wiki's "Mitt Romney" blp does mention a couple of things he'd counselled as a laypastor (quote: "he [Romney] counseled women not to have abortions except in the rare cases allowed by LDS doctrine[nb 10] and encouraged unmarried women facing unplanned pregnancies to give up their babies for adoption.[69]").

(In any case, I believe a Romney--or a Barrett--may be reluctant to talk much about such counsellings due their respective privacy as well as confidentialities granted communicants.)--Hodgdon's secret garden (talk) 14:51, 8 October 2020 (UTC)

Here's a section dealing with a subject's religious-education leadership in a SCofWI member's blp: "Brian Hagedorn#Views on LGBT rights."--Hodgdon's secret garden (talk) 19:18, 8 October 2020 (UTC)

Revised version of proposed content

Here's a shorter, slightly revised version of the content that I propose, since the longer version may be clouding the issue:

Like her mother, Barrett has previously served as a "handmaid" (a leadership position for women) in People of Praise. Barrett is the first Supreme Court nominee from a charismatic Christian background.

References

We typically include religious leadership positions where well-cited. (To give a recent example, Cal Cunningham's article states that he is an elder in the Presbyterian Church; Jimmy Carter's article notes that he is a Sunday school teacher in a specific Baptist Church). Here, in addition to the in-depth Washington Post article, this was reported upon by the Associated Press and other top-tier sources. Her longstanding active membership of the group was also the subject of earlier reporting dating back several years. Neutrality^talk 15:09, 8 October 2020 (UTC)

So it seems this is more about the "handmaid" wording. Why not simply write "Like her mother, Barrett has previously served in a leadership position in People of Praise." That's neutral, well sourced, and probably DUE. The "Like her mother" part is probably also unneccessary, but I wouldn't quibble about that. Mr Ernie (talk) 18:57, 8 October 2020 (UTC)

There's zero reason for the circumlocution. Both cited sources identify the title. Neutrality^talk 19:06, 8 October 2020 (UTC)

It's a euphamism and semantics. Just say what she was. Most people associate handmaid with that book, which isn't accurate to what Barrett was - a leadership position in a religious group, something most people are more familiar with. What's the real circumlocution - "handmaid (a leadership position for women)" or "a leadership position?" Mr Ernie (talk) 19:13, 8 October 2020 (UTC)

To omit the actual title is just weird. It's in the first few lines of both sources. We don't ignore the source material. Neutrality^talk 19:26, 8 October 2020 (UTC)

There are differing intuitions or gut instincts here about whether to use the title "handmaid" to describe a role she had with POP (or may have had according to a 2010 handbook). From what I can tell, the reason for resisting the use of that title (as opposed to describing her as holding a leadership position) is because POP no longer uses that terminology. And, the reason they no longer use that terminology is because in between when they started to use it, and when they abandoned it, the Margaret Atwood book was published. Once that book was published and became popular, including with a television adaption, the connotation people would get when they'd see the word "handmaid" was based on that set of associations, and that's not what POP's leadership position was ever about, in any way at all, according to their statements on the matter. Thus, the POP group decided to no longer use it. They gave up on the term for those reasons. That's how they have described their thinking on this. These would also be reasons why people here might have second thoughts or not have the same gut instinct that it should be obviously clear and unproblematic just to use that older terminology. Some of the examples given above about, for example, including in Cal Cunningham's article that he is an elder in the church, or that so-and-so teaches Sunday school -- those examples are disanalogous to the situation under discussion here because the Presbyterian Church still does use the word "elder" and various churches still refer to the act of Sunday school teaching etc. Their terminology hasn't shifted over time, contrary to the situation with People of Praise and the word "handmaiden". FWIW, my grandmother was a nurse in the southwest in the 50s who trained medical personnel on the care of Down syndrome children. At that time, many people including mainstream medicine used the word "mongoloidism" or "mongoloid" to refer to this condition and as mother told me, my grandmother had a job title that had that word in it. Starting in the early '60s, people stopped using "mongoloid" (as is described in the Wikipedia article about this) but, however, it was historically true that at one point prior to this name change, my grandmother's employment had given her a job title that used that word. If she had been the subject of a Wikipedia article, would it have seemed important to use that older job title to describe her, even when time had moved on and the title had fallen into disrepute? I don't think so. Novellasyes (talk) 22:17, 8 October 2020 (UTC)

The fact that the organization later adopted a different title (years later) is immaterial. What matters is the title at the time. If we wanted to include a parenthetical, explanatory note such as (the group later renamed the position 'women leader'), then would seem to resolve any concern. But if the contention is that we should omit the title even though all reliable sources use it, that doesn't find any basis in encyclopedia policy. Neutrality^talk 23:36, 8 October 2020 (UTC)

I think Hodgdon's secret garden improved things with this edit. "Handmaid" doesn't mean anything to the average reader, so we would have to define it anyway (and then undoubtedly get into a whole overly verbose recounting of how they used to call it a handmaid and now they don't , Margaret Atwood, blah blah blah). Might as well just cut to the chase and clearly describe what the position is in a way readers can easily understand. It's also probably not important to mention her mother here. Maybe in the early life section? But this article needn't become a family almanac, either. Marquardtika (talk) 02:18, 9 October 2020 (UTC)

I agree entirely with Neutrality. We should cover this aspect according to RS, which in this case involves using the actual term. To second-guess these RS based on editors' "gut instincts" or WP:OR essays about genetic disorders that their grandmothers used to treat amounts to a NPOV violation. Sure, if people feel that readers in 2020 need a parenthetical remark to avoid misunderstandings related to some currently running TV series, we can discuss that. That said, it's also worth keeping in mind that neither People of Praise nor Margaret Atwood invented the term "handmaid"; its most important connotations existed already when Amy Coney Barrett decided to take on a position with that name. Regards, HaeB (talk) 03:57, 9 October 2020 (UTC)

A problem with the word "handmaid" is that it implies she is a deontologicalist, since handmaids (using the generic and general definition) perform duties. Including the disputed content from her 2016 graduation address would be good balance for this, since it shows her using utilitarianism. I support the inclusion of the term handmaid on the condition that the disputed content at Talk:Amy_Coney_Barrett#2016_graduation_address is also included.--Epiphyllumlover (talk) 04:28, 9 October 2020 (UTC)

I get that to Neutrality it seems blindingly obvious that the fact that the organization adopted a different title is immaterial. That doesn't seem obvious to me. There is also a hint of an argument that "encyclopedia policy" would invariably, universally and 100% of the time conform to Neutrality's instincts on this. Is that really the case? Has this topic, but with different people, been thoroughly discussed by the folks who consider deep policy issues like that for biographies and has a lasting consensus been reached? Novellasyes (talk) 12:24, 9 October 2020 (UTC)

I appreciate that the RSs use the term handmaid, and that is what it was called at the time. But if we use the term 'handmaiden' we have to explain that it is a leadership position, not a subserviant position. And if we have to say "handmaiden, a leadership position" they what is the point of including the term 'handmaiden?' The historical use of it as a title is irrelevant and the current implication of the term handmaiden is more likely to cause unneccessary negative conotation. Tchouppy (talk) 13:48, 9 October 2020 (UTC)

I think we might be overthinking this. Why don't we just say "Barrett served in a high-ranking female leadership position in People of Praise." That's clear, concise, and supported by the AP and Washington Post sources. Marquardtika (talk) 14:13, 9 October 2020 (UTC)

I don't understand why we should obscure the title of her position when it was a real title within the organization and when RS have specifically mentioned it. We are not here to run PR for this person and scrub away terms that don't sound cool. Snooganssnoogans (talk) 14:42, 9 October 2020 (UTC)

Both AP and Washington Post clearly present the title "handmaid" a central aspect of this part of ACB's life, each of them even highlighted it in the title. Your argument is that Wikipedia should deviate from these RS in that respect, because 1) your own judgment of its relevance ("irrelevant) is superior to the RS, and because 2) omitting it will make the article subject appear in a more positive light. I don't agree with either, but in any case it is a violation of WP:NPOV, which asks us to represent "all the significant views that have been published by reliable sources on a topic", not "all the significant views that have been published by reliable sources on a topic and that editors agree with, and that do not risk to portray the article subject in a negative light". Regards, HaeB (talk) 16:53, 9 October 2020 (UTC)

I'll take another crack at this. I think it would be uncontroversial to say that "Over time, some organizations change the terminology they use to refer to their roles, positions and offices." There are many examples of this. One example would be that Pan Am used to refer to female flight attendants as stewardesses. At some point in the history of their organization, they stopped using the label "stewardess". But, some women who worked at Pan Am were referred to as "stewardesses" by dint of when they worked there. Since it is (I believe) uncontroversially the case that a number of organizations have changed their role-related terminology over time, the question could arise on many Wikipedia articles about whether to refer to the subject of the article by the label that they actually did have, by dint of when they worked for or had a role in an organization, even if the name of that role was later changed. Because ACB/the handmaid situation is surely not the first time this has ever happened, I thought perhaps there might already be a well-established policy on WP on how to handle situations like that. I have looked but so far haven't found one. I will say that if a dialogue were to occur on Wikipedia by its editors who like to work on editorial policy, that I doubt that these editors would come to a consensus that said, "Anytime a person who is a subject of a Wikipedia article once had a job that at the time they held it, was referred to as "XYZ", but the organization later changed its name for that role, we should 100% of the time, invariantly, always use the original label, and not use the new name that the organization changed to." I also doubt that the consensus would be "Always just use the new name." I imagine that "it depends on a lot of different factors and here are some to pay attention to" might be as far as one would get. I could be wrong but because of thinking that through, I've been surprised by editors here believing with 100% certainty that it is blindingly obvious how to deal with this. If we were working on an article about a woman who was a flight attendant once at Pan Am, I wouldn't be in favor of a sentence about her saying, "Jane was a stewardess at Pan Am (a role they now refer to as flight attendants)". I'd be more inclined to say "Jane was a flight attendant at Pan Am." There are lots of other examples like that, often involving women: Stewardess. Waitress. Poetess. Ambassadress. Novellasyes (talk) 22:17, 9 October 2020 (UTC)

My personal favorite is senatrix.--Hodgdon's secret garden (talk) 00:02, 10 October 2020 (UTC)

wordy much?-->

nytimes[42] - ". . Men and unmarried women are each assigned to individual counselors, an older member of the same gender, whom they consult about spiritual and practical matters. Some former members say those counselors — male leaders are called 'heads' — exerted notably granular influence, attempting to control their dating lives and their household budgets. Married women are “headed” by their husbands. . . Until recently, the group used the term 'handmaids' to refer to female leaders, inspired by a biblical reference to Mary, the mother of Jesus, as “the handmaid of the Lord.” They shifted to 'women leader' when the popular TV adaptation of the book 'The Handmaid’s Tale' gave the term a sinister cast. . ."
--Hodgdon's secret garden (talk) 00:30, 10 October 2020 (UTC)

What do y'all think of this explanatory note that I added? Marquardtika (talk) 02:32, 10 October 2020 (UTC)

Thank you. It is concise and resolves most concerns circulated above.--Epiphyllumlover (talk) 21:06, 10 October 2020 (UTC)

Makes sense to me. Novellasyes (talk) 01:04, 11 October 2020 (UTC)

Looks good. The only thing I could think of adding would be that "handmaid" is biblical reference to Jesus’ mother Mary, who called herself “the handmaid of the Lord.” This would clarify that the term is a reference to serving the Lord and not to just being somebody's personal maid or female servant. — Swood100 (talk) 20:07, 11 October 2020 (UTC)

I am removing the POV tag because this discussion has died down.--Epiphyllumlover (talk) 19:12, 18 October 2020 (UTC)

ACB (1) a political constitutional conservative? (2) w rgd precedent

Surfing teh webs I see it said^{salon/brianjglenn} that accdg to Harvey Mansfield, Peter Berkowitz, et al, so called "constitutional conservatism" "requires a proper balance between principle and prudence." ... "J. S. Mill, Edmund Burke, Alexis de Tocqueville, Benjamin Franklin, Abraham Lincoln, and the authors of the Federalist Papers, all focused on how a society of people with very different values could live together." (&c&c.)--Hodgdon's secret garden (talk) 15:41, 9 October 2020 (UTC)

washingtonpost/charleskrauthammer [43] [44]: ". . Jurisprudentially, he [Roberts] is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature. ... That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the court . ."
--Hodgdon's secret garden (talk) 15:54, 9 October 2020 (UTC)

• cmt - Some kind of established lexical meaning for the term doesn't seem to pop up in my search results.

  Hmmm. Here's a shot at giving a meaning to the term from the seat of my pants: Maybe there isn't any precise meaning for the term as a compound and that maybe what it really means can best be understood by breaking the term into its constituents. When, for example, the White House (link) or the American Center for Law and Justice (link) say ACB's one, maybe what they're intending to convey is that she's both constitutionalist -- "jurisprudentially believing in close readings of the U.S. foundational document's text"(?) -- AND conservative -- "holding a stringent belief in following as opposed to making law"(?): both of which trends toward a conservative POV: sticking with established ways/tried and true/so-called ""law-and-order" politics/so on and so forth.--Hodgdon's secret garden (talk) 14:38, 11 October 2020 (UTC)

I just now see that the "Conservatism in the United States" wikiarticle includes this material:

* Constitutional conservatism, a form of conservatism bound within the limits provided within the United States Constitution, defending the structures of constitutionalism, and preserving the principles of the United States Constitution. Chief among those principles is the defense of liberty. This form of conservatism coalesced in the Republican Party in the early 20th century, in opposition to progressivism within the party; it can also be seen being influential to the 21st century Tea Party movement. Constitutional conservatism has also been associated with judicial originalism.

--Hodgdon's secret garden (talk) 14:41, 11 October 2020 (UTC)

References

A former wikientry on "constitutional conservatism" was deleted (link): "The result was delete per either WP:NOR or WP:V—take your pick because in its current form at least one or the other applies." --Hodgdon's secret garden (talk) 14:48, 11 October 2020 (UTC)

Fwiw, the wayback machine has this 2005 snapshot (link) of the (lacking-of-references) stub:

Constitutional Conservatism is the belief in free enterprise, limited government, and traditional conservative principles within constitutional boundries. Essentially, constitutional conservatives believe that the ideas and intent of the framers, who formed the constitution, should be applied to government for all time, and seek to restore or maintain a constitutional size of government.

In the United States of America, constitutional conservatives believe in the size and scope of the government as invisioned and originally intended by the Founding Fathers. Typically they are pro-life, pro-religious freedom, pro-fair trade, pro-gun rights, and are almost universally strong supporters of property rights, and support a limited federal government, less regulation of the economy, and support nationalism.

--Hodgdon's secret garden (talk) 15:05, 11 October 2020 (UTC)

In general your findings are correct, and are consistent with my earlier comments about it.--Epiphyllumlover (talk) 17:13, 11 October 2020 (UTC)

• We should stay away from using descriptive terms for which there is no clearly defined definition, resulting in an amorphous term that operates like a Rorschach blob and into which people can put whatever meaning they think belongs there. If we think that the term means x, y and z, then let's use x, y and z. — Swood100 (talk) 18:23, 11 October 2020 (UTC)

user:Epiphyllumlover: I think its We're-the-liberty-loving-folks! (read: "proponents-of-classical liberalism") aspect important. Saying this as someone voting Progressive. My meaning: Constitutional conservatives see themselves as critical of perceived less-than-(small D)-democratic aspects at the core of (another would-be catch-all here) living-Constitution Progressivism. In any case, user:Swood100, catchalls such as these are in currency and are useful when politics are being discussed, even though they can be disputed when arm-chair political theorists on Wikipedia or elsewhere posit what deep realities of thought may underlie these surface tensions.--Hodgdon's secret garden (talk) 11:49, 12 October 2020 (UTC)

catchalls such as these are in currency and are useful when politics are being discussed

I disagree. I think “constitutional conservative” to one person describes someone who wishes to bring about policy goals favored by political conservatives, and to another person describes someone who believes that the constitution should be interpreted in an originalist fashion, or perhaps someone who believes that the discovery of new constitutional rights should be done with a great deal of caution. To one person “conservative” refers to political end goals and to another person “conservative” refers to the method of constitutional interpretation. I don’t think that such terms are useful when politics are being discussed, but are rather a source of confusion when people don’t define their terms. It is especially troublesome in this context where everyone is focused on the differences between Barrett’s personal and judicial philosophies. What does calling her a constitutional conservative say about that? — Swood100 (talk) 14:35, 12 October 2020 (UTC)

Well, when a journalist and/or opinion maker <coughs> Sen. Coons says that a Justice Barrett would be prone to hold that Griswold was badly reasoned due to her record of judicial "conservativism," such a "shorthand" is useful within political discourse. Although the attempt to strain out what exactly the meaning of the word conservative's parameters are in whatever context is a worthy one -- such as whether this ascribed "conservatism" of ACB's is really fully judicial, political, or social -- to deny that the word has any useful ah erm public meaning seems a stretch.--Hodgdon's secret garden (talk) 15:40, 12 October 2020 (UTC)

Well, “judicial conservative” is better-understood than “constitutional conservative.” Coons means “Scalia-like” and “an adherent of originalism and textualism.” That kind of person (along with plenty of non-conservatives) would say that Griswold was badly reasoned, and/or not an exemplar of original public meaning. I don’t object to “judicial conservative.” — Swood100 (talk) 16:10, 12 October 2020 (UTC)

When ACB is called a constitutional conservative, it refers to her judicial approach rather than her politicasl ideology, although the two are connected. It refers to originalism and judicial restraint, as opposed to the living constitution and judicial activism.[45] TFD (talk) 19:14, 12 October 2020 (UTC)

Then why can't we just say that? Isn't it too soon to be attaching labels to her judicial philosophy? She's been a judge since 2017 but she was conservative before that. EagleLanding (talk) 03:10, 13 October 2020 (UTC)

Per The Four Deuces, we do say that when the article discusses her originalism and philosophy of judicial restraint. The use of "constitutional conservative" in the sources above means the same thing. Since some people will inevitably confuse "constitutional conservative" with "politically ideologically conservative," I see no reason why we should introduce the term when her originalism is already well covered in the article. Marquardtika (talk) 15:22, 13 October 2020 (UTC)

Here’s a description of what “Constitutional Conservative” means to many people:

For conservative politicians, the name signals that they are identifying as Tea Party members, which means limiting government, balancing the federal budget, lowering taxes, ending redistribution from the wealthier to the poor, assigning a central position for God in the lives of Americans, even in courthouses and public schools, and asserting the right to bear arms. While God will always be given top billing, one gets the sense that lowering taxes and eliminating social programs are actually the most important pillars in the platform -- so much so that many elected officials claim to be unwilling to compromise no matter what the short-term consequences.

"Constitutional Conservative" was used by and is associated with the Tea Party movement. It carries that baggage in people’s minds, which goes far beyond merely an approach to interpreting the Constitution. If this is not what we are intending to ascribe to Barrett then we should use a different term. “Judicial conservative” is generally regarded as carrying this meaning:

In short, judicial conservatives believe that judicial authority extends only to judicial enforcement of the law enacted by the requisite majority of duly elected representatives, whether that law is a statute or the Constitution. They argue that because any such enactment represents the authoritative voice of the people, it should be "strictly construed" according to the "original intent" of its framers. Any deviation from the original intent lacks authority and is to be condemned as judicial fiat or "lawmaking."

So if we need to use such a term, this would be it, but do we? — Swood100 (talk) 16:03, 13 October 2020 (UTC)

I agree we don't need a term, we should just describe her judicial approach, per technical language. If someone wants to say that this has been described as constitutional or judicial conservatism, that's fine so long as we clearly convey the meaning when used to describe her views.

The Tea Party meaning of the term if I remember would mean seeing the IRS, FBI and Dept. of Education as illegal because their responsibilities are not assigned to the federal government in the original constitution.

TFD (talk) 20:00, 13 October 2020 (UTC)

• For what it's worth (LINK):

Coons take on ACB's jurisprudential philosophy

". . Judge Barrett has said that she shares the judicial philosophy of the late Supreme Court Justice Antonin Scalia, for whom she clerked. Justice Scalia had deeply regressive views of the law. He was the sole dissenter in the case that struck down the Virginia Military Institute’s male-only admissions policy and helped pave the way for the fight against gender discrimination across the board. He dissented in cases that secured rights for same-sex couples, for workers, for Native Americans, for the incarcerated, and for consumers. Justice Scalia even sought to overturn the Supreme Court’s landmark decision in Miranda v. Arizona, which requires law enforcement to read people their rights upon arrest. Not only does Judge Barrett share Justice Scalia’s originalist philosophy; her writings indicate that she would overturn longstanding precedents that conflict with it. Throughout her career, Judge Barrett has endorsed a legal philosophy that argues that Supreme Court justices should simply overturn precedent with which they disagree. This means that many of the rights the American people think of as established and part of who we are as a country — like the right to privacy or the right to marry whomever they love — would be in danger of being taken away. In fact, after reviewing her record and writings over the past few weeks, I believe Judge Barrett has a radical judicial approach, even more conservative than Justice Scalia. . ."

1. Also this clip from pbsnewshour[46] contains back-n-forths between ACB & Sen. Coons on such things as her prospectively joining the Court's ah conservative [sic] flank as well as on her academic analysis, "Statutory Stare Decisis in the Court of Appeals."
2. And, Jonathan Turley argues for ending the "sham of stare decisis politics" here. (Quote: "Stare decisis often seems honored more in the breach by justices in the majority and most often cited by justices in dissent. When they secure a fifth vote, justices often lose their adherence to precedent.")
3. ACB's been quoted[47], "The doctrine has its greatest bite, however, when it constrains a justice from deciding a case the way she otherwise would. In this situation, a justice must decide, to paraphrase Justice Brandeis, whether it is better for the law to be settled or settled right." Google scholar, however, seems to point to Alexander Tsesis's 91 Tex. L. Rev. 1609 (2012-2013) "Maxim Constitutionalism: Liberal Equality for the Common Good"[48](?) --Hodgdon's secret garden (talk) 15:25, 15 October 2020 (UTC)

Not sure what is being suggested by these references. Are you looking for a way to characterize Barrett’s view on stare decisis, such that the reader will have greater insight into how she will rule on abortion, gay rights and other incendiary issues? I question whether the characterizations of senators leading the charge against her confirmation (as demanded by his base) will qualify. I have similar doubts concerning an evaluation of this question in an article beginning, “Amy Coney Barrett is a radical jurist whose extremist interpretation of the Constitution could jeopardize the very unborn lives she seeks to protect.” Nor do I see the relevance of general statements of legal principles that do not refer to any reason for knowing how Barrett will come down on this issue. — Swood100 (talk) 16:04, 15 October 2020 (UTC)

The alleged quote of ACB seemed quite good.

Here's another one from npr (ACB to Coons)[49]: ". . 'I think that Griswold is very, very, very, very, very, very unlikely to go anywhere.' . . Coons pointed to a 2013 Texas Law Review article in which Barrett argued that a Supreme Court justice should disregard precedent if she believes an earlier ruling was incorrectly founded. . ."

Also an interesting quote from nationalreview/matthewcontinetti[50] w rgd would-be political constitutional-conservatism: ". . For years, the Right has tried to define a 'constitutional conservatism' that would serve as the political analogue to originalism. That project has been overshadowed by the rise of national populism. . ."
--Hodgdon's secret garden (talk) 00:38, 18 October 2020 (UTC)

washingtonmonthly(Garrett Epps)[51] - ". . [ACB]: 'Stare decisis is not what holds a super precedent in place, for the force of a super precedent does not derive from the Court’s refusal to overrule it. Rather, it stays in place largely because it stays off the Court’s agenda.' . ."
--Hodgdon's secret garden (talk) 15:24, 18 October 2020 (UTC)

• ACB's "Settled? or Settled right?" paraphrase of Brandeis can be found here.--> (link)

(2013) Precedent and Jurisprudential Disagreement

Decided cases enable the justices to reason by analogy, and the doctrine itself is a reference for arguments grounded in other modalities like text, structure, ethics, prudence, and history.16 Because of these and many other contributions, stare decisis can fairly be characterized as the workhorse of constitutional decisionmaking.17 The doctrine has its greatest bite, however, when it constrains a justice from deciding a case the way she otherwise would.18 In this situation, a justice must decide, to paraphrase Justice Brandeis, whether it is better for the law to be settled or settled right.19 This is the decision upon which this Article will focus. 16. Cf PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 7 (1982) (describing the modalities of constitutional argument). 17. See MICHAEL J. GERHARDT, THE POWER OF PRECEDENT 65 (2008) ("The extreme frequency with which the justices cite, or ground their opinions in, precedent establishes precedent as a, if not the, principal mode of constitutional argumentation."). For an excellent catalogue of the many contributions other than constraint that stare decisis makes to constitutional law, see id at 147-76. 18. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 139 (1997) ("The whole function of the doctrine is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability."); Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. REV. 570, 570 (2001) ("The force of the doctrine ... lies in its propensity to perpetuate what was initially judicial error or to block reconsideration of what was at least arguably judicial error."). 19. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting) ("Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.").

--Hodgdon's secret garden (talk) 15:09, 18 October 2020 (UTC)

I support including the settled or settled right quote in the article.--Epiphyllumlover (talk) 18:47, 18 October 2020 (UTC)

Do you think that the “settled or settled right” quote suggests that by default she would prefer one answer over the other?

Here’s the full Barrett quote:

Because of these and many other contributions, stare decisis can fairly be characterized as the workhorse of constitutional decisionmaking. The doctrine has its greatest bite, however, when it constrains a justice from deciding a case the way she otherwise would. In this situation, a justice must decide, to paraphrase Justice Brandeis, whether it is better for the law to be settled or settled right.

This is simply a description of what stare decisis means. “Settled or settled right” is always the question when stare decisis is being considered, since by definition a judge believes that the law was decided erroneously before and the question is whether the prior decision should be overruled. The question would be to what extent we want to explain stare decisis in this article. She lists the factors to be given weight when considering stare decisis.

Coons pointed to a 2013 Texas Law Review article in which Barrett argued that a Supreme Court justice should disregard precedent if she believes an earlier ruling was incorrectly founded. . ."

This is an assertion that Barrett doesn’t follow stare decisis at all. I can’t locate any such statement by Barrett in that article. Coons may have claimed that, but what is the Barrett statement that he is relying on? — Swood100 (talk) 22:54, 18 October 2020 (UTC)

user:Swood100, Maybe we can mention in this or the confirmation article along the lines that coons/mainstream media scribes such as totenberg & raphelson read ACB as advocating an inherent predilection but several times in her testimony she said she should be parsed as describing a tension.

Nationalreview/rameshponnuru[52] ". . checked Barrett's testimony against Samantha Raphelson's account for NPR, by the way, and it gets the point about precedent wrong. She writes, 'Coons pointed to a 2013 Texas Law Review article in which Barrett argued that a Supreme Court justice should disregard precedent if she believes an earlier ruling was incorrectly founded.' That’s not what she argued. She was explicitly defending the Supreme Court’s longstanding practice of giving some weight to precedent. She merely argued against giving a lot more weight to it. In a passage frequently taken out of context, she rejected the idea that protecting the legitimacy of the Supreme Court is an independent reason to retain mistaken precedents. . .")
--Hodgdon's secret garden (talk) 15:15, 19 October 2020 (UTC)

insurancenewsnet[53] - Coons: ". . After studying Judge Barrett's record, I'm convinced she would come to the Supreme Court with a deeply conservative originalist philosophy and a judicial activism with regards to precedent that would put numerous longstanding rights the American people have come to rely on and hold dear in nearly every aspect of modern life at risk. Simply put, I believe she will open a new chapter of conservative judicial activism unlike anything we've seen in decades. . . As she conceded during our questioning, our exchange, Judge Barrett has written in no uncertain terms she thinks Chief Justice Roberts got it wrong in his ruling upholding the law against the constitutional challenge. She wrote that article in early 2017 and months later found herself on President Trump's shortlist for the Court. . . Judge Barrett also steadfastly refused to answer whether she believed Scalia was correct in his criticism of Griswold v. Connecticut, a case decided when I was just 2 years old that protects the right to use contraceptives in the privacy of one's home and is an important landmark case because it is the anchor as we all recognize the line of substantive due process jurisprudence. Chief Justice Roberts, Justices Alito and Kavanaugh, were willing to say Griswold was right, so it left me concerned and as I laid out yesterday, what truly concerns me more is her approach to precedent. Precedent has been called the foundation stone of American law and gives predictability, stability to it. And as I walked through yesterday, I've concluded that Judge Barrett is even more willing than Justice Scalia to overturn precedents with which she disagrees and made clear that justices should feel free to overturn cases that they believe were wrongly decided, which if she deeply holds the originalist philosophy she's espoused may mean that dozens and dozens, in fact as I detailed in a chart yesterday, more than 120 cases long settled in many cases may be at risk of reconsideration. . ."

apnews[54] - Barrett: ". . that sentence has been plucked out of the article to kind of, I think, create this impression about the context. The whole article discussed reliance interests, discussed the reasons for stare decisis and emphasized that courts ought not disrupt settled precedent absent very good reason to do so, reliance interests being one. . ."
--Hodgdon's secret garden (talk) 16:09, 19 October 2020 (UTC)

Hodgdon's secret garden: One approach would be to say “X interprets Barrett’s writings as arguing that a Supreme Court justice should disregard precedent if she believes an earlier ruling was incorrectly founded. Y interprets Barrett’s writings as saying the opposite." Under this approach there would be no problem with: “She clearly does not consider as a justice she is bound by precedent,” said Democratic Senator Mazie Hirono of Hawaii. “And we don’t know on what basis she will do this.” All kinds of statements motivated only by partisanship would be allowable.

Another approach would be to locate passages in Barrett’s academic writings or judicial decisions that have been interpreted in different ways and show the different interpretations. This seems to me to be clearly the right approach. For example, the following seems to be the passage that Ramesh Ponnuru believed had been misinterpreted by Coons (emphasis added):

The above speaks to the Court’s apparent legitimacy. The question remains whether overruling precedent affects the Court’s actual legitimacy. Does the Court act lawlessly—or at least questionably—when it overrules precedent? I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it. That itself serves an important rule-of-law value. Of course, constant upheaval in the law would disserve rule-of-law values insofar as it would undermine the consistency—and therefore the predictability—of the law. But constant upheaval is not what a weak presumption of stare decisis has either promised or delivered. The Court follows precedent far more often than it reverses precedent. And even though overruling is exceptional, it is worth observing that the Court’s longstanding acceptance of it lends legitimacy to the practice. Our legal culture does not, and never has, treated the reversal of precedent as out-of-bounds. Instead, it treats departing from precedent as a permissible move, albeit one that should be made only for good reason. Because there is a great deal of precedent for overruling precedent, a justice who votes to do so engages in a practice that the system itself has judged to be legitimate rather than lawless.

The following seems to be the passage referred to by AP News (emphasis added):

Basic confidence in the Supreme Court requires the assumption that, as a general matter, justices decide cases based on their honestly held beliefs about how the Constitution should be interpreted. If one is willing to make that assumption about the decision of cases of first impression, one should also be willing to make it about the decision to overrule precedent. A change in personnel may well shift the balance of views on the Court with respect to constitutional methodology. Yet the fact that a reversal flows from a disagreement between the new majority and its predecessors about constitutional methodology does not itself render the overruling illegitimate, as criticisms of overruling sometimes suggest. Reversal because of honest jurisprudential disagreement is illegitimate only if it is done without adequate consideration of, and due deference to, the arguments in favor of letting the precedent stand.

The Insurancenewsnet text seems to be little more than a rant by Coons that Barrett seems to him to be too willing to disregard precedent, and that the precedent he is most concerned about would probably not be thought consistent with an originalist interpretation of the Constitution.

Do you think I have identified the correct passages, and that the objection of Barrett’s defenders is that it is misleading to display the bolded portions in isolation, without any explanation of how an alternative interpretation is more likely the correct one? Are there any others? — Swood100 (talk) 20:21, 19 October 2020 (UTC)

Here's another one that may have been referenced by the Barrett critics (emphasis added):

In cases like these, stare decisis seems less about error correction than about mediating intense jurisprudential disagreement. Asking whether a prior case is in “error” according to a shared standard does not generally require a justice to relinquish her fundamental interpretive commitments. But when a justice rejects the premises of a precedent rather than its conclusion, affirming it requires her to let those commitments go. Seen in this light, it is unrealistic to think that the Court should give its constitutional precedent more weight than it currently does, at least in those cases that strike at a justice’s core positions. (Indeed, the fact that statutory and common law cases more rarely involve fundamental commitments may be one reason why more robust stare decisis is easier to sustain in those contexts.) Justices are unlikely to set aside easily their most closely held jurisprudential commitments; in fact, history shows that they have been unwilling to do so. They express the hope that “the intelligence of a future day” will turn their dissents into majorities. And sometimes they cling to dissents repeatedly in future cases, steadfastly refusing to give stare decisis effect to a precedent with which they disagreed at the time it was decided. — Swood100 (talk) 20:49, 19 October 2020 (UTC)

user:Swood100: Thanks for researching these. Below, I précis what "ACB believes—" (as expressed in the boldened triptych above).

1. [coons-barrett(from npr)] "I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it. That itself serves an important rule-of-law value."

   —that rule of law is served by overturning of Constitutionally incorrect precedent;.

2. [coons-barrett(from apnews)] "Basic confidence in the Supreme Court requires the assumption that, as a general matter, justices decide cases based on their honestly held beliefs about how the Constitution should be interpreted."

   —that confidence in the Court requires its decisions be grounded in justices' respective constitutional interpretations; and,

3. [unnamed sen.(s)-barrett(uncited)] "Justices are unlikely to set aside easily their most closely held jurisprudential commitments; in fact, history shows that they have been unwilling to do so."

   —[the tautology] that closely held jurisprudential commitments are indeed those that are least likely to be set aside.

How can the nonboldened material surrounding these three be précised? My shot:

1. [npr] —that under the Court's "weak presumption of stare decisis" it "follows precedent far more often than it reverses precedent," which serves "consistency—and therefore the predictability—of the law";
2. [apnews] —that "reversal because of honest jurisprudential disagreement is illegitimate only if it is done without adequate consideration of, and due deference to, the arguments in favor of letting the precedent stand"; and,
3. [uncited] —that the Court's upholding precedent, to the extent it does, is sometimes about "mediating intense jurisprudential disagreement".

--Hodgdon's secret garden (talk) 15:58, 20 October 2020 (UTC)

It appears she uses a complicated procedure to determine when to follow precedent and when not to. What comes out in your quotes are clues to what her reasoning processes look like on the topic, but cannot be the full picture because of their generalized nature. In theory someone will be able to write about it at some length in the legal scholarship in like 10 or so years. It could be worse--we can thank her for not pontificating like a Federal Reserve Chairman. At some level being completely open to how you operate may be unwise in her career because if you say things really bluntly, lawyers are going to exploit it. To give an idea of how they strategize for their audience, see pages three and following:[55]--Epiphyllumlover (talk) 00:51, 21 October 2020 (UTC)

Well, user:Epiphyllumlover, some folks have given it his shot.

1. Gregory Bassham(Commonweal)[56] - ". . she largely falls back on various 'passive' strategies that judges can employ to avoid head-on collisions between original meaning and popular, well-entrenched non-originalist holdings. When push comes to shove, however, the inexorable logic of 'original public meaning is the law' must prevail, and the mistaken precedents must die. As she says, it is all a matter of 'timing' (Barrett and Nagle 2016, 43)."
2. Dale Carpenter(Reason magazine, orig. from The Volokh Conspiracy)[57] :

   "Judge Barrett, in a 2013 Texas Law Review article defending what you call the Supreme Court's 'weak presumption of stare decisis in constitutional cases,' you wrote the following:

   Justifying an initial opinion requires reason giving, particularly if the majority is challenged by a dissent. Justifying a decision to overrule precedent, however, requires both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal. The need to take account of reliance interests forces a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps. Stare decisis protects reliance interests by putting newly ascendant coalitions at an institutional disadvantage. It doesn't prohibit them from rejecting a predecessor majority's methodological approach in favor of their own, but it makes it more difficult for them to do so.

   (pp. 1722-23)

   "At first reading, your views seem well within the mainstream of American legal thought. An erroneous decision should neither be overruled simply because it is wrong nor should it be reaffirmed simply because there has been some institutional investment in it or individual reliance on it. Every justice, with the possible exception of Clarence Thomas, accepts something like that statement.

   "But Judge Barrett, your approach to stare decisis seems more subtle and possibly adds a wrinkle. Your approach implies a sliding scale in which a justice weighs the degree of certainty that the earlier decision was actually wrong against the strength of the need for continuity. As you wrote: 'If she [the justice] is not sure enough, the preference for continuity trumps.' (emphasis added). Also, you write: 'I tend to agree with those who say that a justice's duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.' (p. 1728) (emphasis added)

   Your version of the weak presumption of stare decisis in constitutional law cases seems to go like this: If a justice is only weakly convinced that a precedent is wrong (say, 51% convinced) then even a small amount of reliance on the precedent (or other institutional interests) might cause her to stand by the erroneous decision.

   But if a justice is completely convinced that a precedent is wrong (say, 100%), then the precedent should be overruled no matter how weighty the reliance or institutional interests.

   (For now, let's leave aside the status of so-called "super-precedents" like Marbury v. Madison, Brown v. Board of Education, the Legal Tender Cases, and so on, for which there is broad executive, legislative, judicial, and popular support.)

   "Is this a fair characterization of your view?
   "Second, you noted in the same Texas Law Review article that "'the more determinate one considers the underlying rules of decision in a particular area, the more likely one may be to conclude that a past decision in that area is 'demonstrably erroneous.'" (quoting Caleb Nelson) You added: 'It makes sense that one committed to a textualist theory would more often find precedent in conflict with her interpretation of the Constitution than would one who takes a more flexible, all-things-considered approach.' (p. 1724) . . "

3. Keith Whittington(nytimes)[58] : ". . The principle of stare decisis was at the center of much of Judge Barrett’s academic work before she was appointed to the circuit court in 2017. Those writings do not reveal how a Justice Barrett would resolve any particular case, hot button or not, that might come before the court. But what those writings do clearly reveal is a scholar working diligently to pull originalists toward a more moderate position on questions of precedent. . . On stare decisis, she has urged giving precedents more weight than some originalists would prefer. . . she has argued that a committed originalist can reasonably adopt a mainstream approach to stare decisis on constitutional issues. Even an originalist judge, she believes, should frequently defer to what might be flawed precedents. That is true for what are sometimes called 'superprecedents' like the unconstitutionality of racial segregation and the constitutionality of paper money, but it is also true for many more ordinary precedents that might have been badly reasoned but that are now broadly accepted. . . Far more interesting were Judge Barrett’s arguments for adhering to precedents, even when she thinks they are mistaken. In contrast to originalists like Justice Thomas, Judge Barrett embraced what she characterized as a 'weak presumption of stare decisis.' Notably, this was her language for describing the standard, mainstream position on stare decisis. She mounted a defense of the conventional view against, on the one hand, those who called on the court to give no real presumption to the validity of existing precedents and, on the other hand, those who favor a strong form of stare decisis in which the justices should almost never overrule the work of their predecessors. Judge Barrett thought it 'inevitable and probably desirable' that the justices be willing to sometimes overturn precedent, but they needed a brake that would slow them down from doing so too easily. That brake can come from a presumption of stare decisis, albeit a weak one . ."
4. Congressional Research Service(Victoria Killion)[59] : ". . For the Supreme Court, deciding whether to overturn a prior decision involves consideration of multiple factors, including the 'quality' of the opinion's reasoning, the 'workability of the rule it established,' and 'reliance on the decision.' Judge Barrett has advocated for a 'flexible' or 'relaxed' approach to stare decisis in which 'reliance interests count,' but hold less weight if a decision is inconsistent with the Constitution or a federal statute. In discussing competing views over the 'legitimacy' of overruling precedent, Judge Barrett wrote in 2013: 'I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.' The former professor has also written that one virtue of a 'weak presumption of stare decisis in constitutional cases' is that it respects pluralism in society, allowing controversial disputes to 'be aired' whether or not they 'should succeed.' . ."
5. Yale Journal on Regulation(Evan Bernick)[60] - ". . She recognized that adherence to precedent can help judges reduce decision costs, error costs, and even legitimacy costs. As to decision costs, Barrett observed that because “justices do not all share the same interpretive methodology, they do not always have an agreed-upon standard for identifying "error,"' precedent can serve as a means of 'mediating intense jurisprudential disagreement' between those who deploy different interpretive methodologies. It can therefore make it easier for Justices to reach decisions than it would otherwise be. As to error costs, precedent can 'force . . . a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach.' Precedent may therefore discourage overhasty votes to overrule that are themselves the product of interpretive error. Finally, as to legitimacy, Barrett noted that a “weak presumption of stare decisis” is particularly important in constitutional cases because it is 'both realistic about, and respectful of, pluralism'—it 'helps the Court navigate controversial areas by leaving space for reargument' by citizens who seek to 'push[] back against the proposition that the Constitution embodies the principles the Court says it does.' . ."
6. First Things(Marc DeGirolami)[61] - ". . her view that stare decisis poses a problem for all theories of constitutional interpretation. She is 'soft' on stare decisis not because she is an originalist, but because people disagree in good faith about how to interpret the Constitution."
   --Hodgdon's secret garden (talk) 15:56, 21 October 2020 (UTC)

@Hodgdon's secret garden and Epiphyllumlover: With respect to Barrett statement #1 above, an explanation of it in context ends up being somewhat verbose, but it has the benefit of explaining Barrett's view on institutional legitimacy as a justification for stare decisis. What do you think of the following:

In the course of his questioning of Barrett, Sen. Coons said:

But in this 2013 University of Texas Law Review article, which has also been referenced today, you wrote, and I’m quoting, “It’s more legitimate for a justice to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” Again, you’re saying that if a Supreme Court Justice thinks a prior ruling was clearly wrong she should disregard precedent with which she disagrees, regardless of the typical balancing factors.

To this, Barrett replied that the meaning Coons was proposing was clearly not the correct one because it was inconsistent with the remainder of the article in question, which discussed reliance interests, discussed the reasons for stare decisis, and emphasized that courts ought not disrupt settled precedent absent very good reason to do so.

The article containing the quote evaluated the different justifications for stare decisis. The quote came in the context of examining the strength of the claim that protecting the Supreme Court’s “institutional legitimacy” is one of the reasons to retain precedent. The first type of institutional legitimacy she discussed was “apparent legitimacy.” The idea is that public confidence in the Court would be diminished if the public saw the members of the Court as “partisan rather than impartial,” and the concern is that this might be the result if new members of the Court overruled the decision of the previous members. Barrett said, “But even assuming that the Court should make decisions with an eye toward its reputation, there is little reason to think that reversals would do it great damage. ...the Court has not been afraid to exercise its prerogative to overrule precedent. Still, public confidence in the Court remains generally high. ...The “protecting public confidence” argument seems to assume that the public would be shaken to learn that a justice’s judicial philosophy can affect the way she decides a case and that justices do not all share the same judicial philosophy. ...That Americans—and thus Supreme Court justices—disagree about how to interpret the Constitution is a fact of our political culture.”

The second type of institutional legitimacy Barrett evaluated as a justification for stare decisis was the extent to which overruling precedent affects the Court’s "actual legitimacy." It was in addressing this question that the text cited by Sen. Coons was found: “The question remains whether overruling precedent affects the Court’s actual legitimacy. Does the Court act lawlessly—or at least questionably—when it overrules precedent? I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it. That itself serves an important rule-of-law value.” Barrett asserts that enforcing the Court’s best understanding of the Constitution, even if that conflicts with precedent, does not increase the lawlessness of the Court. Those who disagree with Coons argue that the cited quote was intended to address whether overruling precedent reduces the Court’s actual legitimacy, and only by presenting it out of context can it seem to indicate that Barrett believes that precedent should always be sacrificed when a justice’s interpretation of the Constitution conflicts with it. — Swood100 (talk) 17:02, 21 October 2020 (UTC)

I support your proposal. In particular it is helpful to mention the comparison that disagreement between past decisions is similar in harm to disagreement between justices. This is useful because it allows the reader to draw an inference between the circumstances of her existing dissents and her propensity to overrule precedent. Barrett's past rulings have shown her to usually agree with other judges. She has a relatively low overall rate of dissent. And one of them resulted in 10 other judges going back and accepting her reasoning. She is not a maverick.--Epiphyllumlover (talk) 17:53, 21 October 2020 (UTC)

Are you suggesting that this is something that should be added to the text that I proposed, in which case I'm not sure how to do that. In fact I'm not sure I understand what you mean. Are you saying that there is a correlation between a propensity to agree with the other judges on the panel when deciding cases and a propensity to overrule precedent? Is there some literature on that? The problem would be not only that we have a relatively small sample size of Barrett opinions, but that Court of Appeals judges must obey Supreme Court precedent and we have no idea how "agreeable" she would have been to affirming that precedent. I'm not sure how clear the record is concerning how many opportunities she had to overrule Seventh Circuit precedent or whether the “propensity to overrule precedent” should be affected as much by the overruling of a number of minor cases as it would by being willing to overrule one major case having profound and wide-reaching ramifications. — Swood100 (talk) 19:13, 21 October 2020 (UTC)

IMO "Barrett replied" should be "Barrett argued," and otherwise the text should veer away from backing up ACB's position, subtly, in Wikipedia's voice. Actually, since Coons & Barrett both seem engaged in splitting hairs, I suppose, your proposed text does so as well. I wonder: Could some more simple disagreement be highlighted? Maybe there's some quote(s) of Coons/others framing too weak of Stare decisis, for example--or even originalism itself run amok--as a threat to the established order, which can be contrasted with others' comments about how whatever's the best thing since sliced bread.--Hodgdon's secret garden (talk) 15:54, 22 October 2020 (UTC)

Hodgdon's secret garden: This particular quote is the one that has been widely quoted to indicate that Barrett will not properly respect precedent, so I think that examining it is worthwhile. I have no problem with “Barrett argued.” Can you explain what you mean by “backing up ACB's position, subtly, in Wikipedia's voice,” and what you mean by “splitting hairs”? — Swood100 (talk) 17:04, 22 October 2020 (UTC)

I suppose that “Barrett asserts that enforcing the Court’s best understanding of the Constitution, even if that conflicts with precedent, does not increase the lawlessness of the Court,” could be seen as implying “…and does not assert that as a general rule it is more legitimate for a justice to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” But is there any question that she is making the assertion specified? She is addressing herself to the question of the Court’s actual legitimacy. I am willing to make changes in order to remove misleading implications. — Swood100 (talk) 17:34, 22 October 2020 (UTC)

Hmm. Well, user:Swood100, I say contribute it and let what tweaks & whatnot come!--Hodgdon's secret garden (talk) 20:55, 22 October 2020 (UTC)

Not so much a general "propensity to agree with the other judges" but that in the source cited above Barrett says that the damage to the court's reputation or credibility is similar between the two. If you include that info, readers may link her personal propensities on their own without the need for additional research on your part.--Epiphyllumlover (talk) 01:33, 24 October 2020 (UTC)

References

• vox/Dylan Matthews[62] - Princeton University's Keith Whittington: Barrett ". . has also suggested that judges ought to care more about stare decisis than Thomas tends to. I think she’s a more moderate figure in that regard than Thomas. . ."
  --Hodgdon's secret garden (talk) 18:43, 27 October 2020 (UTC)

Credibility check

11th reference can't be read unless if subscribed and paid. Is it ALRIGHT to trust it on ancestry? Stephenfryfan (talk) 04:15, 15 October 2020 (UTC)

Not sure what the 11th reference is, but the same problem applies to sources that are not available online at all, and I don't see them being excluded any time soon. — Swood100 (talk) 15:26, 15 October 2020 (UTC)

The Wall Street Journal is considered a credible source.--Epiphyllumlover (talk) 18:49, 18 October 2020 (UTC)

Per TP banner removal: Judges are not politicians, and Barrett is no exception.

Since this article is probably being quite heavily edited I thought I would post about this. There is a talk page banner saying that Barrett is an "active politician" and "running for office." Neither of these things are true. In the words of Stephen Breyer "we wear black robes because we speak for the law, not for ourselves." This is not at all true of politicians, and if there's anything to be taken away from Barrett's confirmation hearing it's that she is not interested in commenting on politics. Furthermore, she is not running for office because she is trying to get a job from the Senate, not the people. I have removed the banner for now but I thought I would give everyone here a chance to discuss.mossypiglet (talk) quote or something 15:19, 15 October 2020 (UTC)

Good points; I didn't think of that.--Epiphyllumlover (talk) 22:40, 15 October 2020 (UTC)

The page appears to have been vandalized with the current image.

When doing a search on this page, the following image of Amy Coney Barrett is shown.

Duck Duck Go search of Amy Coney Barrett

It has been replaced by a picture that is uglier and seems to have been done maliciously. — Preceding unsigned comment added by Cl00bie (talk • contribs) 20:49, 16 October 2020 (UTC)

I was unable to find any issue on the Duck Duck go page. Possibly it has been fixed. There are two screenshots from the hearings some years back that I uploaded. The one on this page is different from the one in the nomination article. The screenshot on this article features a more agreeable expression. I was not trying to make her look bad--I needed a brief moment when the C-SPAN subtext was not obscuring the bottom. Only brief moments of the video (right before it cut away from her) lacked the watermark. This restricted my ability to get an aesthetically pleasing screenshot. The photos used on this article have been widely viewed (2.8 million views from Monday the 12th through Saturday.[63]) and widely copied in the media. I believe the first screenshot that featured a less agreeable expression was reproduced by others (such as the Chinese wikinews) partly because it is smaller and a closer portrait crop rather than due to any malicious attempt to make her look bad.--Epiphyllumlover (talk) 18:44, 18 October 2020 (UTC)

Potentially notable cases

• Notability has nothing to do with the inclusion threshold for articles. Within articles, WP:DUE is the applicable policy. Elizium23 (talk) 01:51, 1 October 2020 (UTC)

I was referring to KinkyLipids's earlier comment that "A non-primary source is needed to establish notability". I noticed that Brett_Kavanaugh#Notable_cases has a lot more cases than this article. Given that he had more judicial experience, that is to be expected. Still I am looking to see which additional cases could merit inclusion. If you think including any of these is undue, or if they merit only a line or two at most, feel free to weigh in. I am seeing if there is interest or not in including them.--Epiphyllumlover (talk) 02:17, 1 October 2020 (UTC)

Epiphyllumlover, @KinkyLipids: was incorrect; notability is not required for article inclusion. If an individual case were indeed notable, then we could create an article for it and link to it from this BLP. I have no opinion on the WP:DUE status of any of these cited cases. Elizium23 (talk) 02:18, 1 October 2020 (UTC)

Maybe the section in the article can be adjusted slightly from "Notable" to "Selected". The preliminary searching is probably the fun part anyway. To actually make this useful is a decent amount of work, so if you want to put one in I won't sue you for alienation of wikiideas.--Epiphyllumlover (talk) 05:03, 1 October 2020 (UTC)

I did incorrectly misapply the notability rule to article inclusion. I was worried about WP:INDISCRIMINATE. I'm not opposed to an editorially selected list of cases. Also, Epiphyllumlover, I'm sorry for creating a misunderstanding on WP:NOTE and confusing it with WP:BLPPRIMARY, which is the actual policy for the use of a non-primary source to establish the acceptability of primary-source material in a BLP: "Where primary-source material has been discussed by a reliable secondary source, it may be acceptable to rely on it to augment the secondary source..." —KinkyLipids (talk) 14:01, 1 October 2020 (UTC)

Last year, I came in and added the notable cases section- I tried to use whether there were RS talking about the case as my guideline, though she wasn't getting much attention then so some I added based on whether the actual case was noteworthy from a legal perspective. And I added cases since as was appropriate (although a lot of articles are paywalled so some did get legal-news traction but not added bc I don't have access to several of the legal news websites.) And some have been deleted as not particarly newsworthy since which is fine, of course. A few have been deleted in the past week that might be worthy of inclusion but with things changing so fast on here, I can't keep up. The problem of course is that is hard to encapsulate the legal issues of a case in such a small space. And lots of RS articles are just looking at the outcome (X person lost...) rather than what the actual legal issues are which makes this even more difficult. And this isn't a legal issues blog so we can't really get into the ins and outs of the cases. Overall, we certainly can't include every case that might get RS coverage and it's probably best just to have 5-6 cases that give a good impression of her legal leanings.Tchouppy (talk) 14:00, 1 October 2020 (UTC)

Thank you for telling me about this! I went through the old edit histories and re-added everything except for Autozone in which her role appears to be more distant due to circumstances. There are other cases dealing with race that could be added instead. Of all the possibilities I floated below, I think the "Qualified immunity" section is the one that needs developing the most. You already have given us coverage of "RAINSBERGER v. Benner"--other cases can be added onto that section.--Epiphyllumlover (talk) 14:54, 1 October 2020 (UTC)

Agreed. Qualified Immunity cases are going to be big going forward and I am starting to see more cases where QI is denied. I'll continue to keep an eye out for cases.Tchouppy (talk) 15:27, 1 October 2020 (UTC)

Look no further! Just below this comment are links to four QI cases, including the one you previously used. Also, I did some word counts for the equivalent sections dealing with pre-nomination cases:

• Kavanaugh-1,373 words
• Gorsuch-1, 898 words
• This article, after re-adding your work-1,417 words.

So I think it would not be excessive to expand this more.--Epiphyllumlover (talk) 15:33, 1 October 2020 (UTC)

I did some word counts for the equivalent sections dealing with pre-nomination cases

• Kavanaugh-1,373 words
• Gorsuch-1, 898 words
• Sotomayor-1,959 words
• This article, after re-adding your work and adding some new content-1,786 words.--Epiphyllumlover (talk) 22:40, 1 October 2020 (UTC)

• The Selected cases section in this article is now at 1,900 words.--Epiphyllumlover (talk) 02:39, 3 October 2020 (UTC)

Obama Center in a park

PROTECT OUR PARKS v. CHICAGO PARK DISTRICT This one generated a lot of coverage and is even mentioned on Barack_Obama_Presidential_Center#Public_land. But it is not an interesting case; federal judges as a rule dislike being made into zoning boards-of-last-resort. A chicagoreader.com article seems to read into it a bit that Barrett is respecting the state level of government and careful not to over-federalize. There are a lot of news articles about this because Chicago has a lot of media. Most do not mention Barrett, but I did not do an exhaustive search.--Epiphyllumlover (talk) 01:48, 1 October 2020 (UTC)

Sexual roughhousing

Smith v. Rosebud Farm A variety of non-paywalled secondary sources at Google News.--Epiphyllumlover (talk) 02:09, 1 October 2020 (UTC)

NHL death

Boogaard v. NHL This is not an interesting case; it does not shed light on Barrett's judging philosophy. But there is a great deal about it already on Wikipedia at Derek_Boogaard#Litigation_by_parents.--Epiphyllumlover (talk) 02:09, 1 October 2020 (UTC)

Dissenting opinions written by Barrett

• Neutral coverage of dissents on vettingroom.org
• Schmidt v. Foster, over the sixth amendment, a critical piece on her dissent is here, a supporting piece on her dissent is in the National Review.
• Sims v. Hyatte, over a Brady violation and Federal/state boundaries, with Barrett wanting the Federal Court to respect the State Court's domain, four results in Google News
• Kanter v. Barr, felons and guns, already in the article
• McCottrell v. White, over shooting intent, within a prison. three results in Google News
• Cook Cty. v. Wolf, public charge, immigration, already in the article
• United States v. Rutherford unpublished order, time of filing, not interesting
• United States v. Uriarte, sentencing when the law changes mid-process, discussion of "clean slate"... a very critical review is here, but if it was really so bad, why did two other judges join her and let her write it?.--Epiphyllumlover (talk) 04:52, 1 October 2020 (UTC)

In U.S. v. Uriarte the defendant wanted the First Step Act to apply. The First Step Act said that it applies (a) to any offense committed before the enactment of the Act (b) “if a sentence for the offense has not been imposed as of such date of enactment.” The Defendant was in fact sentenced before the enactment of the Act, but the sentence was later vacated on unrelated grounds. Barrett held that as of the date of enactment, a sentence had been imposed, since “imposed” denotes a past act, not an ongoing condition. There were eleven pages of reasoning.

Reasonable people can disagree on this but the article, which comes across as a rant, refers to her reasoning as “clumsiness, tortured and precarious chains of logic, applications of plainly irrelevant definitions and precedents, and cruel contempt for those seeking justice.” It was the author of the article who appears to be unbalanced here, to think that such terms describe this opinion. — Swood100 (talk) 19:03, 1 October 2020 (UTC)

I considered paraphrasing the coverage of Uriarte in the vettingroom.org for the article, but since vettingroom.org is a blog rather than a reliable source I think it is not recommended.--Epiphyllumlover (talk) 19:33, 1 October 2020 (UTC)

Shonda Martin v Milwaukee County case deserves mention, possibly in the criminal procedure section

In light of police violence, questions of who may be held responsible when agents of the state use state-sanctioned violence outside of the responsibilities of their duties to commit crimes. In the Martin v Milwaukee County case, Barrett and the panel overturned the lower court that held the county had some responsibility for the actions of the prison guard when the guard raped the plaintiff and there are credible analyses that suggest Barrett and the panel were ruling based on principles outside of Wisconsin law, fitting in the pattern of judges and justices of all stripes to rule based on their own beliefs about what the law should be. For this reason, Barret has been accused of "unconscionable cruelty" by Accountable.US. 96.32.39.201 (talk) 02:43, 18 October 2020 (UTC)

If Martin v Milwaukee County is included, it follows that it should go with the other qualified immunity cases. In general Barrett appears to hold a more restrictive view of qualified immunity and a more expansive view of fourth amendment rights. That is, she tends to be more restrictive to law enforcement and more favorable to the accused, investigated, or incarcerated. You also might review the issues with this website's policy on putting in partisan sources. I was allowed to use one earlier on the suspension of habeas corpus, but needed to include another source on the topic from the opposite perspective along with it for balance. I encourage you to look in the Congressional Research Service report to find links to decisions personally authored by Barrett.--Epiphyllumlover (talk) 18:31, 18 October 2020 (UTC)

That case involved a corrections guard who had sex with an inmate. The County had clear guidelines and training forbidding this. The question was whether the guard had been operating within the “scope of employment” which would allow the woman to sue the County. The case had to be decided under Wisconsin law, which said that an employee’s conduct is not within the scope of his or her employment if it is too little actuated by a purpose to serve the employer or if it is motivated entirely by the employee’s own purposes, or if it is different in kind from that authorized or far beyond the authorized time or space. The woman who had been attacked “did not introduce any evidence from which a reasonable jury could conclude the sexual assaults were of the same or similar kind of conduct as that which County employed [the guard] to perform. Nor did she introduce any evidence from which a reasonable jury could conclude the sexual assaults were actuated even to a slight degree by a purpose to serve County.” Therefore she failed to prove that, under Wisconsin law, the guard had been within the scope of his employment. Is this “unconscionable cruelty” on the part of Barrett? — Swood100 (talk) 22:51, 19 October 2020 (UTC)

This is not a qualified immunity case, rather an employment case.--Epiphyllumlover (talk) 01:37, 20 October 2020 (UTC)

Dialect

Is New Orleans English worth including, on the basis of this source?--Epiphyllumlover (talk) 19:56, 18 October 2020 (UTC)

No. Amusing story, but Barrett's dialect is a non-issue other than for one ignorant 'Tweeter'. —Blanchette (talk) 20:44, 21 October 2020 (UTC)

People are interested in judicial dialects, descriptions of Gullah in the article on Clarence_Thomas could give ideas on how to incorporate it somewhere.--Epiphyllumlover (talk) 01:35, 24 October 2020 (UTC)

No. The NOLA article about tweets is not biographically or historically significant. Neutrality^talk 19:28, 26 October 2020 (UTC)

Removal of expert analysis of her ideology score per WP:CRYSTAL???

The editor CharlesShirley removed[64] content sourced an article by scholars which summarized their research on the ideology scores of judges, and which included their assessment of Barrett's ideology in relation to other judges. It's hard to think of more encyclopedic content on the page of a judge than that which is authored by experts and which outlines the judicial philosophy of said judge according to academic metrics. The content should be restored. Snooganssnoogans (talk) 21:53, 22 October 2020 (UTC)

I wonder if we could change the wording: "According to a different metric of ideology scores, Barrett would be the second most conservative justice on the Supreme court (if confirmed), behind Clarence Thomas." It implies that the two studies disagreed. I would prefer, "According to a different study conducted for the Washington Post....." TFD (talk) 22:17, 22 October 2020 (UTC)

You say that Barrett would be the second most conservative justice on the Supreme court (if confirmed), behind Clarence Thomas, but according to the graph in the article, on Dimension 1 (traditional left-right political division) she is third most conservative behind Gorsuch and Thomas, and on Dimension 2 (highly salient cases along some social and civil rights issues) she is also third behind Alito and Thomas. — Swood100 (talk) 15:59, 23 October 2020 (UTC)

I guess if you mathematically combine the two dimensions she ends up being second most conservative but would it be useful to break out the two dimensions in the article? — Swood100 (talk) 16:06, 23 October 2020 (UTC)

While the study may show she would be the second most conservative justice, the chart shows that she groups pretty closely with the other conservative judges except Thomas. That's the conclusion in the first source. The phrasing in the edit implies that she is far to the right of the other conservative judges except Thomas. TFD (talk) 16:39, 23 October 2020 (UTC)

This is a strange discussion. I removed a bit from an author that claims he knows how Barrett is going to vote as a Supreme Court justice. She hasn't even be placed on the court yet. No one can know how she is going to vote. I don't care what the background of the people are that wrote the article it doesn't matter. No one has the ability to read the future. That is a fact. If any article attempts to KNOW how she is going to vote then they are engaging in speculation. It is speculation.  Wikipedia is a not a Crystal Ball. That is simple. We don't speculate on what might happen in the future. -- CharlesShirley (talk) 17:57, 23 October 2020 (UTC)

What Snooganssnoogans (talk) added to the article gives a false impression of what the article actually said. There is no place for this. The wording added was: "According to a different metric of ideology scores, Barrett would be the second most conservative justice on the Supreme court (if confirmed), behind Clarence Thomas." This does not reflect, at all, the more nuanced discussion of the Washington Post article. The Post article makes it clear that most Justices shift their ideological perspective when they join the court. That most, but not all, shift either left or right on the left-right ideological scale. The edit does not indicate this. It just makes the totally falsely loaded claim that Barrett will be the second most conservative justice, which is false, and of course it is speculation on the future, which is not encyclopedic at all. There are tons of things wrong with the addition and it should remain out of the article. -- CharlesShirley (talk) 17:51, 23 October 2020 (UTC)

Per the ideology scores, she is the second most conservative justice in comparison to the others on the court. The text never said she would be bound to stay that way for all eternity. Just because Barack Obama may become conservative at a future date, we don't avoid describing his political views in the present. Snooganssnoogans (talk) 18:11, 23 October 2020 (UTC)

CharlesShirley: Do you object also to the University of Virginia study? Is any estimate of how conservative she is likely to be on the Court allowable? WP:CRYSTAL does say, "Predictions, speculation, forecasts and theories stated by reliable, expert sources or recognized entities in a field may be included..." — Swood100 (talk) 18:33, 23 October 2020 (UTC)

These are not "predictions". These are scores based on the decisions she's already made. Snooganssnoogans (talk) 18:39, 23 October 2020 (UTC)

Horse hockey. Of course, they are "predictions". She is NOT on the court. You are wrong. The UVA study is looking at her work on the 7th Circuit and comparing that work to other 7th Circuit judges, that is real information. That work is NOT speculation. I did not remove the UVA article because it is based on things that actually happened. But the study by the professors for Wash Post is taking the 7th Circuit decisions and comparing it to what Supreme Court justice decided. This is comparing apples to oranges. It is pseudo-science. And it is speculation. There is NO WAY to tell how ACB would have decided those Supreme Court cases. It is speculation from professors. The UVA study compares apples to apples. The Post study is speculation and does not belong in the article. It is attempt to see into the future and as such it should not be in the article. -- CharlesShirley (talk) 18:46, 23 October 2020 (UTC)

"There is NO WAY to tell how ACB would have decided those Supreme Court cases." At no point anywhere does the text say she has decided any Supreme Court cases. That's solely your own poor reading comprehension. This is a measure of ideology for justices. The measure does not prevent comparisons across courts, despite your own baseless original analysis that the measure is not applicable across courts. Snooganssnoogans (talk) 19:05, 23 October 2020 (UTC)

Offered for the purpose of prediction. Why else would you write: "Barrett would be the second most conservative justice on the Supreme court (if confirmed)..."? — Swood100 (talk) 18:48, 23 October 2020 (UTC)

We do not do predictions. See: WP:CRYSTAL -- CharlesShirley (talk) 18:53, 23 October 2020 (UTC)

Relative to the other judges, the ideology scores show her to be the second-most conservative. If she is confirmed, her ideology score would be the second-most conservative. If she takes different opinions in the future, then the score changes. Just as how Bernie Sanders's ideology score would change if he suddenly turned into a Tea Party Republican. This is not rocket science. Snooganssnoogans (talk) 19:05, 23 October 2020 (UTC)

No one said it was rocket science. So drop the attitude. But you are ignoring the fact that what you wrote does not reflect what the Post article says. The Post article states that she is not on the supreme court yet and the studies authors have no idea how she will vote if she is on the court. Your addition does not state that. Your addition is deceptive and is not NPOV. What you wrote is your opinion, not the opinion of the authors of the study. And the information is still speculation, where the experts compared apples to oranges. -- CharlesShirley (talk) 19:32, 23 October 2020 (UTC)

Do we really have to write "On this metric of justices' ideology, her score is the second-most conservative of those on the Supreme Court. However, this does not mean she will be that way for all eternity"? Are Wikipedia's readers morons? Should we change Joe Biden's description from "Moderate Democrat" to "Moderate Democrat but he might become a Tea Party Republican. He might also become a Socialist. He might also stay the same"? This is ridiculous. The lengths that people here go to prevent people from knowing what Barrett's judicial philosophy is. Snooganssnoogans (talk) 19:59, 23 October 2020 (UTC)

CharlesShirley I understand that it would not be right for someone on Wikipedia to say "she was conservative to this degree on the 7th circuit, so probably she would be the 2nd most conservative justice of SCOTUS if confirmed". That would be Wikipedia making a prediction. But is it against the "we don't predict rule" to report on what legal scholars think she will probably do if confirmed? To me, that is more like us reporting on opinion polls. I could be wrong since the cases are not strictly analogous. Novellasyes (talk) 19:20, 23 October 2020 (UTC)

CharlesShirley: WP:CRYSTAL does say that certain predictions are allowable “by reliable, expert sources or recognized entities in a field.” You say that it is legitimate to conclude that one 7th Circuit judge is more conservative than another even though they have worked on very few of the same cases together. What do you say to this type of analysis, comparing Supreme Court justices from 1953 – 1999? If there is a valid way to determine judicial “conservativeness,” then I don’t quite see why it wouldn’t be comparable across courts. — Swood100 (talk) 19:23, 23 October 2020 (UTC)

THERE IS NO PREDICTION. These are the scores based on the decisions these judges have already made. It goes without saying that any person might change over time. Trump may become a socialist, Obama may become a fascist, Clinton may become an anarchist. Snooganssnoogans (talk) 20:01, 23 October 2020 (UTC)

I agree with Snooganssnoogans. Reporting the analysis of other sources is not CRYSTAL. JTRH (talk) 20:03, 23 October 2020 (UTC)

• U.ofV.'s Fischman & Cope (fivethirtyeight[65]) ". . analyzed . . cases that the 7th Circuit has heard since Barrett joined the court in 2017, including 378 where Barrett cast a vote . . It remains to be seen just how persuadable Barrett might be if she’s confirmed . . we do know that during her time on the 7th Circuit, Fischman and Cope found that she has voted in a liberal direction about 20 percent of the time when at least one Democratic nominee is on the panel but only about 9 percent of the time when the panel is composed of three Republican nominees. That could indicate that Barrett is open to the arguments of her more liberal colleagues — or that she is choosing not to dissent in some cases for the sake of collegiality. . ."
  --Hodgdon's secret garden (talk) 15:12, 24 October 2020 (UTC)

• I agree it should probably be excluded. PackMecEng (talk) 15:25, 24 October 2020 (UTC)

• I see nothing wrong with including this sentence. This is a well-sourced, scholarly metric of past decisions that is helpful to the reader. Indeed, it would be very odd to exclude it. Neutrality^talk 19:24, 26 October 2020 (UTC)

The legality of the Senate Judiciary Committee vote is now in the air

Two minority members were not present, hence it violated the Committee rules.InsulinRS (talk) 22:11, 22 October 2020 (UTC)

I’m pretty sure the full Senate can and will vote to proceed anyway. JTRH (talk) 00:19, 23 October 2020 (UTC)

Questionable legality suggests it can be only symbolic. Even Fox News accepts that two minority party members must be present[66]InsulinRS (talk) 11:39, 23 October 2020 (UTC)

Even if you threaten to waive the rules, it doesn't mean you can. Even Vice News stated that the majority "broke the rules."[67]. However, I now prefer to keep my edits off the page until there is consensusInsulinRS (talk) 13:03, 23 October 2020 (UTC)

Apparently, Schumer has already raised his point of order on the Senate floor, which was voted down by the full Senate, which is the judge of its own business. — Swood100 (talk) 18:15, 23 October 2020 (UTC)

This kind of detail probably belongs in the nomination article. — Swood100 (talk) 18:44, 23 October 2020 (UTC)

Agree with Swood100 on this.--Epiphyllumlover (talk) 01:36, 24 October 2020 (UTC)

Unless there is a reasonable possibility that it might invalidate her nomination, it's not significant to this article. There was such a case in Canada, where the Canadian Supreme Court rejected the nomination of Marc Nadon to the court. TFD (talk) 03:45, 24 October 2020 (UTC)

It will absolutely not invalidate her nomination. The Senate vote to confirm is not dependent on action by the Judiciary Committee. JTRH (talk) 15:23, 24 October 2020 (UTC)

• as always, it was good for the Democrats to do it, but not for the GOP.

  The Judiciary Committee rules add that nominations cannot be reported "unless a majority of the Committee is actually present at the time such action is taken and a majority of those present support the action taken." Committee business has been transacted without minority members multiple times in the past, including in 2014 when Democrats took similar action to what Republicans took today with lower court judges. Committees have discretion over their own rules as long as their actions do not conflict with Senate rules.

  This is basically trivia to include and not really necessary. Sir Joseph ^(talk) 00:15, 27 October 2020 (UTC)

Cherrypicking? (w rgd how often judge barrett sided w police)

Snooganssnoogans added the following to Judicial philosophy, political views, speeches, and writings:

According to a review by Reuters, Barrett's rulings on the 7th Circuit showed that she consistently sided with police and prison guards when accused of excessive force.

The reference cited ended with this text:

“I don’t think we can draw definite conclusions about how Judge Barrett would approach qualified immunity once she’s on the Supreme Court,” said Jay Schweikert, a policy analyst with the libertarian Cato Institute, which is campaigning against qualified immunity. “Her decisions all look like reasonable applications of existing precedent.”

I added the following:

Many of the cases dealt with qualified immunity. According to Jay Schweikert, who advocates for the Supreme Court reducing or eliminating the doctrine of qualified immunity, "Her decisions all look like reasonable applications of existing precedent."

This was removed by Snooganssnoogans on the ground that it was WP:CHERRYPICKING.

In the context of editing an article, cherrypicking, in a negative sense, means selecting information without including contradictory or significant qualifying information from the same source and consequently misrepresenting what the source says.

Does adding this text constitute cherrypicking, or does its absence constitute cherrypicking? Saying that Barrett consistently sided with police when accused of excessive force makes it sound as if she has a bias in favor of police in these cases, but not if she simply decided the cases as she was required to by Supreme Court precedent. — Swood100 (talk) 16:03, 26 October 2020 (UTC)

References

You purposely picked an opinion by someone who agreed with you while omitting opinions from that very same piece that disagreed with you ("“Her record also makes clear she is predisposed to side with law enforcement in the context of excessive force cases,” said Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law, which opposes Barrett’s confirmation."). That's cherrypicking. I'm of the opinion that the Reuters review should be in the article, not cherrypicked commentary from said review. Snooganssnoogans (talk) 16:07, 26 October 2020 (UTC)

Snooganssnoogans: OK then, how about this:

Many of the cases dealt with qualified immunity. According to Jay Schweikert, who advocates for the Supreme Court reducing or eliminating the doctrine of qualified immunity, "Her decisions all look like reasonable applications of existing precedent." There is a range of opinions on the subject. “Her record also makes clear she is predisposed to side with law enforcement in the context of excessive force cases,” said Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law, which opposes Barrett’s confirmation. According to Reuters, “Other groups that advocate for reform of the criminal justice system say she has written some encouraging rulings, with an overall record that is mixed.”

This way we get on one side the statements that she "consistently sided with police" and is "predisposed to side with law enforcement," and on the other side "reasonable applications of existing precedent" and "some encouraging rulings, with an overall record that is mixed." — Swood100 (talk) 16:29, 26 October 2020 (UTC)

References

• I favor the shorter version (Snooganssnoogans), and do not like the longer version (Swood100). The Reuters bottom line is the important part that we should briefly summarize; we don't need the individual quoted commentary from Schweikert and Clarke, which both makes the article longer and unhelpfully makes the sentence into a back-and-forth, he-said-she-said among two advocacy groups. Neutrality^talk 19:27, 26 October 2020 (UTC)

The reason that Reuters included the different opinions was to show that the explanation for the rulings is disputed. That was the bottom line of the article. To show that is unhelful?

"In the context of editing an article, cherrypicking, in a negative sense, means selecting information without including contradictory or significant qualifying information from the same source and consequently misrepresenting what the source says." — Swood100 (talk) 20:20, 26 October 2020 (UTC)

unhelpfully makes the sentence into a back-and-forth, he-said-she-said among two advocacy groups

@Neutrality and Volun2020: The two advocacy groups are on the same side of the question. Schweikert and Clarke both favor the reduction or elimination of qualified immunity. They come to different conclusions about whether Barrett can be blamed for her rulings or whether they were required by Supreme Court precedent. — Swood100 (talk) 14:40, 27 October 2020 (UTC)

I don't see any cherry picking issues with that edit. PackMecEng (talk) 15:56, 27 October 2020 (UTC)

I dont see any cherry picking either to be honest. Eruditess (talk) 23:33, 27 October 2020 (UTC)

The problem is that the source is spin rather than substance. On the contrary, Barrett appears to favor a more expansive restriction regime on police activity--both for the more narrow topic of qualified immunity and for broader fourth amendment issues. This is all covered in the Selected cases section. And for suspension of habeas corpus, she thought that the suspension was unlawful every time it was implemented throughout history save once. The critical source that should be found (if it is necessary to have a critical source) is a law-and-order type character complaining that she's on the criminal's side and is hamstringing the police.--Epiphyllumlover (talk) 04:55, 28 October 2020 (UTC)

Epiphyllumlover:

The problem is that the source is spin rather than substance.

What does this mean? What is “the source”? Reuters? Is it spin rather than substance when Reuters reports that there is an alternative explanation for Barrett's voting record in these cases? Is it cherrypicking to include that alternative explanation?

Barrett appears to favor a more expansive restriction regime on police activity--both for the more narrow topic of qualified immunity and for broader fourth amendment issues.

Perhaps, but we are now dealing with accurately portraying this one source, Reuters, and the question is whether it is cherrypicking to include, as the source did, that while Barrett consistently sided with police and prison guards when they are accused of excessive force, the view is held among organizations which champion the rights of defendants that “she has written some encouraging rulings, with an overall record that is mixed” and that "Her decisions all look like reasonable applications of existing precedent."

If you are suggesting that the bottom line is that she really is biased in favor of the police in excessive force cases then we need a source that says that. Does this source say that? Where do you come down on the question presented here? — Swood100 (talk) 15:45, 28 October 2020 (UTC)

I am "suggesting that the bottom line is that she really" against the current policing status quo, and would like to see law enforcement reined in. The source being accused of "cherrypicking" is worse than that. It presents the wrong summary, one that contradicts the cases already in the "Selected Cases" section. I instead have an opinion similar to this article. Additionally, the "3 cases that hint" abcnews article already referenced in the article implicitly sees her as someone who wants to rein in police. If you want to say her track record is "mixed" because sometimes she does not do everything the accused or convicted ask for, that is also truthful. The two topics where she bucked the mainstream the most are where she advocated the right for non-violent felons to bear arms and where she opined that all historical suspensions of habeas corpus were unlawful save one.--Epiphyllumlover (talk) 18:00, 28 October 2020 (UTC)

Epiphyllumlover:

OK, so you believe that the Reuters text is not an appropriate summary of Barrett’s attitude toward law enforcement. Some of the sources suggest that the following might be appropriate:

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.

Barrett's decisions on the Seventh Circuit show a willingness to consider arguments by both the government and criminal defendants carefully, but offer only limited guidance on how the nominee may rule in specific criminal cases if confirmed.

Barrett's 7th Circuit Decisions Suggest that she Takes a Constrained View of Qualified Immunity.

Barrett’s Police-Accountability Record May Be Better Than RBG’s.

Barrett's cases have signaled that she is not the sort of judge who bends over backward to shield cops from liability for outrageous misconduct.

In fact, perhaps we could even include a reference to how her mentor, Scalia, the originalist, was famous for his "surprising support of criminal defendants".

Do I understand you correctly? Would you be in favor of moving the Reuters text to a different section and adding to it the additional sentence that I originally proposed? — Swood100 (talk) 21:14, 28 October 2020 (UTC)

References

Plus: Reason's Jacob Sullum [68] [69] believes ACB's ". . not the sort of conservative who automatically defers to the government's position when its actions impinge on constitutional rights. . ."
--Hodgdon's secret garden (talk) 21:33, 28 October 2020 (UTC)

But on a more mundane level, do you support the original edit I made? — Swood100 (talk) 22:24, 28 October 2020 (UTC)

I support removing the original sentence in question entirely. It is undue weight that only concerns itself with "excessive force" issues. The typical reader will catch the "sides with police" part of the sentence and interpret it more generally. This interpretation is wrong. In reality judicial issues involved in policing are much broader than excessive force. Unless you are going to go and examine each facet of police-related litigation she handled and label them all by topic it is inappropriate to use excessive force as the yardstick.

If for some reason the Reuters text cannot be removed, I support moving it and addition the additional sentence, and even the entirety of your "the following might be appropriate" selections you wrote out above and also the Jacob Sullum opinion.--Epiphyllumlover (talk) 01:22, 29 October 2020 (UTC)

I do hope some kind of nuance w rgd ACB decisions Re civ. liberties might become added to the article (see eg scotusblog's Adam Feldman [70] : ". . Of the areas with five or more cases, the only area in which she voted conservatively under 80% of the time was in civil liberties cases, at 76.12%. . .").--Hodgdon's secret garden (talk) 14:59, 29 October 2020 (UTC)

It’s hard to get a handle on her true proclivities just by whether she voted in a “conservative” or a “liberal” direction on X number of cases. If in qualified immunity cases "Her decisions all look like reasonable applications of existing precedent" then should those be counted pro-civil liberties or the opposite? — Swood100 (talk) 17:24, 29 October 2020 (UTC)

Civil-liberty proponents of whatever flavor sometimes align together against those disposed to grant the state less fettered authority.

reuters8May2020[71] (w rgd Baxter v. Bracey) - ". . the 6th U.S. Circuit Court of Appeals in Cincinnati, Ohio, granted the officers immunity. Baxter then petitioned the Supreme Court to overturn the lower court. 'I felt like the officers were wrongly getting away with spilling my blood,' Baxter told Reuters in a handwritten letter sent from prison in Tennessee. Now, the liberal American Civil Liberties Union and the libertarian Cato Institute are providing legal support for Baxter. The Alliance Defending Freedom, a conservative Christian advocacy group, the NAACP Legal Defense & Educational Fund, a civil rights group, and a diverse collection of legal scholars are also backing some of the cases awaiting the high court’s attention. . ."

But, I think these scholars in question do pencil in decisions as rein in qualified immunity in their "liberal" column, for whatever this ought be considered worth, inasmuch as such categorization can seem confusing: it's being under the "conservative" umbrella nowadays you'd categorize libertarians, with "liberals" being classed statists.

motherjones/5June2020[72] - ". . Civil liberties groups and legal scholars across the political spectrum say the doctrine, known as 'qualified immunity,' makes it extremely difficult for victims and their families to hold abusive officers accountable. On Wednesday, Libertarian Rep. Justin Amash of Michigan and Democratic Rep. Ayanna Pressley of Massachusetts announced on Twitter that they would co-sponsor a bill to abolish qualified immunity and 'restore Americans' ability to obtain relief when police officers violate their constitutionally secured rights.' . ."

--Hodgdon's secret garden (talk) 20:32, 29 October 2020 (UTC)

But saying that voting, for example, against immigrants, is a “liberal” vote just is not accurate. Take the case of Beltran-Aguilar v. Whitaker. There the entire panel voted against the immigrant but the other two judges were Rovner and Hamilton, who have the first and third most liberal voting records on the 7th circuit. The law just required this outcome. So we would need a way of excluding cases like this before we can say what her attitude is on civil liberties. — Swood100 (talk) 21:29, 29 October 2020 (UTC)

• usatoday[73] - ". . police officers, are typically protected from civil lawsuits under a complex and hotly debated legal doctrine called 'qualified immunity.' Those employees lose that immunity, however, if they are found to have violated 'clearly established' laws or constitutional rights. . . the [appellate] judges [including ACB] argued, 'Day's right "to be free from an officer's knowing use of handcuffs in a way that would inflict unnecessary pain or injury" was not violated.' The involved officers, therefore, retained their qualified immunity, potentially shielding them from Shanika Day's lawsuit. Her lawyers have asked the case to be heard by the Supreme Court . ."
  --Hodgdon's secret garden (talk) 20:35, 19 November 2020 (UTC)

Lead expression

• "Prior to her confirmation to the Supreme Court..." Was she confirmed to the court?--Jack Upland (talk) 01:14, 27 October 2020 (UTC)
• "modern times" — what does that mean?--Jack Upland (talk) 01:32, 27 October 2020 (UTC)

"Lead too short" tag

This article had a tag saying “This article's lead section does not adequately summarize key points of its contents. Please consider expanding the lead to provide an accessible overview of all important aspects of the article. (October 2020)” I disagree; it looks to me like the lead section covers the main aspects of the article very well, in three well-written paragraphs. And I see that whoever added the tag did not come here to the talk page to say what they thought was missing. So I have removed the tag. Open to discussion if anyone thinks the current lead is inadequate or needs to be expanded. -- MelanieN (talk) 15:40, 27 October 2020 (UTC)

lead is insufficient, look at the length of the article, the number of topics covered, and then view the lead, clearly not to the standard we would expect for an entry of this type. Acousmana (talk) 17:18, 27 October 2020 (UTC)

I have removed the tag again. If you want to expand the lead, that's up to you. But there is no dire problem that warrants a tag.--Jack Upland (talk) 00:24, 28 October 2020 (UTC)

I agree that the tag is unwarranted.--Epiphyllumlover (talk) 01:27, 9 November 2020 (UTC)

Shouldn't the lead note why her nomination/confirmation was contentious?

She's the first Supreme Court nominee to be confirmed in 151 years without any support votes from the other side, and her nomination/confirmation has led to calls for courtpacking. The underlying reason is that Republicans broke norms by refusing to hold a hearing on Garland and then flip-flopped on their rationale (that people should have a say in the next Supreme Court justice when an election has started) when a seat opened after RBG's passing. The circumstances under which she was nominated and confirmed are noteworthy enough to belong in the lead, and they have long-term encyclopedic value. Snooganssnoogans (talk) 15:44, 27 October 2020 (UTC)

I agree. We should also mention her legal views. TFD (talk) 15:48, 27 October 2020 (UTC)

Agreed. All RS characterize her judicial views as conservative. Per all measurements of judicial philosophy, she was among the most conservative judges on the 7th Circuit, and is in terms of ideology scores the 2nd most conservative justice on the Supreme Court after Clarence Thomas. Snooganssnoogans (talk) 15:51, 27 October 2020 (UTC)

I don't think controversial is the right term. More like partisan. PackMecEng (talk) 15:55, 27 October 2020 (UTC)

Yes, confirmations used to be based on judicial competence and now are based on whether it is believed that they will vote in favor of substantive policies such as abortion or LGBT. It stands to reason that the votes should be on a party line basis. The days of the almost-unanimous confirmations of Ginsburg and Scalia are long gone. — Swood100 (talk) 16:42, 27 October 2020 (UTC)

only one of the many notable aspects that are missing from the lead, right now it does not provide an authoritative summary, it's lacking. Acousmana (talk) 17:21, 27 October 2020 (UTC)

She's the first Supreme Court nominee to be confirmed in 151 years without any support votes from the other side

If straight party line votes are the ‘new normal’ in the current hyper-partisan Supreme Court confirmation process, then it’s a statement about the process, not about Barrett. — Swood100 (talk) 19:27, 27 October 2020 (UTC)

Well said. We should not coat rack this article about Barrett for people to complain about politics. Emir of Wikipedia (talk) 21:00, 1 November 2020 (UTC)

Yes, there is already a separate nomination article for the politics.--Epiphyllumlover (talk) 01:26, 9 November 2020 (UTC)

The lede of the article should not give undue weight to extraneous carping. This is yet another instance in a long list of instances in which a group creates an issue where an issue does not intrinsically exist. Not a peep was heard from a single soul over the qualifications of Amy Coney Barrett. Bus stop (talk) 20:31, 27 October 2020 (UTC)

@Bus stop: I believe some mention should exist saying her being a contentious nomination. And it wasn't over her qualifications, it was Trump nominating her so close to an election and later her conservative views. I'm not watching this page, please use {{replyto|Sixula}} if you wish to respond. Sixula (talk) 21:00, 27 October 2020 (UTC)

I think the nub of the contention was that the Republican senators had blocked Obama's nomination of Garland in 2016 on the grounds it was too close to the election, but they have now supported a nomination much, much closer. However, as was pointed out in 2016, there is no problem with nominating a judge in an election year. If Trump had held off, there would have been a vacancy in the Supreme Court that couldn't have been filled to February (and possibly wouldn't have been filled to much later). Hence the contention really relates to the Republican senators stacking the court with conservatives and using inconsistent rationales, not with a judge being appointed a month after the death of another, because that is simply good administrative practice.--Jack Upland (talk) 00:19, 28 October 2020 (UTC)

Undoubtedly, it should be mentioned, reams written on the matter, all WP:RS, ignoring it is divisive. Acousmana (talk) 20:44, 1 November 2020 (UTC)

Nomination date

Shouldn't the date of her nomination be mentioned in the lead? 69.116.73.107 (talk) 15:50, 27 October 2020 (UTC)

Only ceremonially sworn in

Apparently yesterdays swearing in was ceremonial, that it was the first of two oaths to become a justice, and the actual ascension to the court will take place sometime today Lochglasgowstrathyre (talk) 15:55, 27 October 2020 (UTC)

Yes, I believe that's correct. This is normal for SCOTUS justices, at least these days -- a ceremonial swearing-in and the official one. --1990'sguy (talk) 18:12, 27 October 2020 (UTC)

Hopefully when she is officially sworn in, the article will be updated, and that sentence about her confirmation senate vote will be modified to her being confirmed. Eruditess (talk) 18:13, 27 October 2020 (UTC)

Here is the SCOTUS press release on this, which the article already cites: [74] --1990'sguy (talk) 18:14, 27 October 2020 (UTC)

4,306 bytes concerning the Rose Garden event & Covid

I am of the opinion that the 4.306 byte importation added by Dosafrog & Snooganssnoogans but removed by CharlesShirley & ProcrastinatingReader does not belong in the article. Barrett is not a Covid-denier; she ruled against the Republicans in Illinois that were challenging the quarantine. However, it might be helpful to insert a section wikilink to another article containing the same information.--Epiphyllumlover (talk) 17:41, 31 October 2020 (UTC)

• I agree with Epiphyllumlover that this information does not belong in this article. — Swood100 (talk) 19:25, 31 October 2020 (UTC)
• I agree that this is excessive.--Jack Upland (talk) 23:41, 31 October 2020 (UTC)
• I agree that this is WP:UNDUE. Also, this is Barrett's biography, so focusing this many bytes on this incident raises WP:COATRACK issues. Maybe this belongs on "Amy Coney Barrett Supreme Court nomination," but not here. --1990'sguy (talk) 20:23, 1 November 2020 (UTC)

She is a climate change "skeptic" though (wait, hang on, she "is not a scientist"). Lots written on this in the press, all WP:RS, all valid, yet no mention of the views she has expressed on global warming - or her oil industry conflicts of interest - in the article. Matter of time I guess. Acousmana (talk) 20:41, 1 November 2020 (UTC)

Fulton v. City of Philadelphia (& precedent Employment Div. v. Smith)

Coming in June 2021 - Stare decisis v. 'Overturning Smith!'

1. theatlantic/Ronald Brownstein [75] - ". . centrist and liberal critics see the ingredients for a political explosion as the Court backs religious-liberty exemptions to laws on employee rights, health care, education, and equal treatment for the LGBTQ community. . . Rachel Laser, the president and CEO of Americans United for Separation of Church and State, told me. Religious institutions and individuals are being given 'the right to wield religious freedom as a sword to harm others, and frankly to dial back social progress in light of our changing demographics and progress toward greater equality.' . . In oral arguments on a case heard early last month, the Court’s conservative majority signaled that it is highly likely to rule that the city of Philadelphia cannot deny contracts to a Catholic social-service agency that refuses to certify same-sex or unmarried couples as prospective foster parents. . . Some conservatives are hopeful that the Court eventually will undo even the 1990 Scalia decision, and vastly widen the opportunities for groups to claim religious exemptions from civil laws. . ."
   --Hodgdon's secret garden (talk) 15:44, 4 December 2020 (UTC)

_I._ Stare decisis

1. nytimes/Thomas B. Edsall - UofMich.'s Leah Litman: ". . 'Employment Division v. Smith[. .holds]that generally applicable statutes (statutes that don’t single out particular religions) are generally constitutional. But Gorsuch, Alito, Thomas and Kavanaugh have all indicated they would be inclined to revisit that decision, and Judge Barrett has criticized it as well. . .'"
2. constitutioncenter/Marcia Coyle[76] - ". . The Supreme Court in a 1991 decision said: 'Stare decisis is the preferred course because it pro­motes the evenhanded, predictable, and consistent devel­opment of legal principles, fosters reliance on judicial decisions and contributes to the actual and perceived integrity of the judicial process.' But in the current division on the Supreme Court, it is often difficult to discern a principled basis for abandoning or following stare decisis. Exactly where a Justice Barrett will stand in this ongoing debate remains to be seen but she will inevitably be tested and perhaps soon rather than later. The day after the presidential election the justices will hear arguments in Fulton v. City of Philadelphia . . One of the questions before the justices is whether the court should overrule a 1990 decision by the late Justice Antonin Scalia. The case, Employment Division v. Smith . ."
3. abajournal/Mark Walsh[77] - (Philly's filing argues that) the principle of stare decisis calls for retaining Smith (a point on which, apparently, the city, the Trump administration, & the ACLU all agree).
4. supremecourt.gov/Eugene Volokh [78] - ". . The lesson of the early 1900s substantive due process experience is that—outside certain narrow areas—the final calls on what constitutes 'liberty' and on when exercise of liberty unduly harms others must therefore be made through the political process. . ."
5. scotusblog/Micah Schwartzman, Richard Schragger, & Nelson Tebbe[79] - ". . The question of what it means for a law to be generally applicable was a pressing one as long as Roberts was in control. He never signaled that he was willing to overrule Smith, unlike four other conservative justices who have called for revisiting the court’s interpretation of the free exercise clause. . . With the addition of Barrett, however, the court’s conservatives may no longer need the chief’s vote to overrule Smith. If so, questions about neutrality and general applicability could fall by the wayside. Perhaps there is some irony that it may take a former clerk of Justice Antonin Scalia, who wrote the court’s opinion in Smith, to bury what is his most important and influential opinion under the First Amendment. . . If the court uses Fulton to reverse Smith, we should expect three further developments . . [But w]ith the chief at the center of the court, it was easier to imagine the court deciding Fulton on narrower grounds, focusing perhaps on problems of neutrality or general applicability, as the court did in Masterpiece Cakeshop to avoid broader questions about how to resolve conflicts between religious freedom and LGBT rights. But, now, with an even more conservative majority, the court seems poised to transform the free exercise clause into a constitutional source of religious privilege — with little, if any, concern for substantial harms to others, whether dignitary or material, and, despite years of conservative argument to the contrary . ."
6. Law.com/thelegalintelligencer[80] - ". . The first and most immediate threat and concern for the LGBTQ community is Barrett’s presence for the court case Fulton v. City of Philadelphia . .and based on the questions asked and how they were posed, it can be presumed that the majority of justices are leaning in favor of 'protecting' religious beliefs. . . Her [ACB's] past faith-based actions, such as delivering a series of lectures funded by the Alliance Defending Freedom (ADF), who successfully argued the Supreme Court case on behalf of Jack Phillips, the owner of Masterpiece Cakeshop . . More importantly, ADF submitted amicus briefs against same-sex marriage in Obergefell v. Hodges. . . "
   --Hodgdon's secret garden (talk) 20:13, 17 November 2020 (UTC)

_II._ Overturn Smith!

1. supremecourt.gov[81] - ". . BRIEF FOR THE STATES OF TEXAS, ALASKA, ALABAMA, ARKANSAS, GEORGIA, KENTUCKY, LOUISIANA, MISSISSIPPI, MISSOURI, OKLAHOMA, TENNESSEE, UTAH, AND WEST VIRGINIA AS AMICI CURIAE IN SUPPORT OF PETITIONER. . SUMMARY OF ARGUMENT . . Smith was wrong the day it was decided, and it remains wrong today. . . Penn's hat is emblematic of the error in Smith’s rule. The Court’s robust, pre-Smith application of the Free Exercise Clause would have protected Penn from contempt of Court. The logic of Smith would not. The hat-removal rule was neutral and generally applicable—it was aimed at promoting respect for the court, not at religion or religious practice. It can be assumed that respect for the Court—and the rule of law it personifies—is a compelling government interest and the hat-removal rule is necessary to further it. Penn himself suggested the less restrictive means—his proposed solution was to wear no hat when entering the courtroom. Smith would not exempt Penn from the neutral and generally applicable hat-removal rule. But the Free Exercise Clause should. And, when given its original meaning, it does. . ."
2. scotusblog/w.virg.'s solicitor general Lindsay See[82] - ". . Broad application and absence of religious hostility are dispositive, not the severity of the free-exercise burden nor the importance of the state’s interest. From that standpoint, it is hardly surprising that the justices who wrote in Newsom and Sisolak asked for more exacting demonstrations than Smith alone requires. . . The court’s informal distancing from Smith also means making the break official would not leave lower courts adrift for the cases to come. Smith has been controversial from its beginning, and decisions by Congress and many states to enact laws like the Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act mean courts already know how to resolve free-exercise cases outside Smith’s framework. . ."
   --Hodgdon's secret garden (talk) 16:41, 1 November 2020 (UTC)

_III._ Trinity Schools' trustee July 2015–March 2017

1. apnews[83] - ". . served for nearly three years on the board of private Christian schools that effectively barred admission to children of same-sex parents and made it plain that openly gay and lesbian teachers weren’t welcome . ."
   --Hodgdon's secret garden (talk) 16:56, 9 November 2020 (UTC)

_IV._ Oral arguments

1. washingtonpost[84] [85]
2. religionnews[86] - ". . Catholic Social Services is asking the court to overturn Employment Division v. Smith. 'The biggest thing coming out of Fulton v. Philadelphia is whether Smith gets revisited,' said Robin Fretwell Wilson, professor of law at the University of Illinois College of Law. . .
3. cnbc[87] - ". . Elizabeth Sepper, a law professor at the University of Texas at Austin who studies religious liberty and equality . . said that the 'foundational disagreement' raised during arguments was whether the court will see CSS as running a government program or as the recipient of a license to provide a service. Religious groups typically have little leeway to shape government programs that they object to. 'I was listening closely as to whether there would be hints as to reversal of Smith, and Smith just did not come up all that much in oral argument,' . ."
4. lawandcrime[88] - ". . CSS has argued for overturning the neutral application test for laws that incidentally impact religious groups–contained in Employment Division v. Smith–but Barrett appeared reticent to upset that landmark First Amendment opinion by former justice Antonin Scalia. . ."
   --Hodgdon's secret garden (talk) 22:20, 4 November 2020 (UTC)
5. nytimes[89] - ". . The agency asked the court to use the case to reconsider an important precedent limiting First Amendment protections for religious practices. The precedent, Employment Division v. Smith in 1990, ruled that neutral laws of general applicability could not be challenged on the ground that they violated the First Amendment’s protection of the free exercise of religion. That request did not receive a great deal of attention during the argument, which lasted about 45 minutes longer than the scheduled hour. . ."
   --Hodgdon's secret garden (talk) 16:12, 5 November 2020 (UTC)
6. yahoo[90] - ". . while questioning Catholic Social Services’ lawyer: 'You argue in your brief that Smith should be overruled. But you also say that you win even under Smith because this policy is neither generally applicable nor neutral. So, if you’re right about that, why should we even entertain the question whether to overrule Smith?' . ."
   --Hodgdon's secret garden (talk) 16:03, 14 November 2020 (UTC)
7. bloomberglaw[91] - "'. . 'for someone who spent a majority of her career as a law professor, her questions have not been classroom hypothetical,' said Goodwin Procter partner William Jay. 'They have been very direct,' and 'they have been generally prefaced with some statement about what she’s getting at,' said Jay . . Case Western law professor Jonathan Adler agreed. 'She's tended to ask focused questions that probe the arguments of the parties and the underlying reasoning,' he said. But Barrett 'does not tip her hand much,' Adler said. . . “But nothing in what I've seen so far changes my priors on the kind of justice she’ll be"—conservative and willing to rethink big questions, Epps [Washington University law professor Daniel Epps] said. For example, in a case pitting religious freedom against LGBT rights, Barrett signaled she may be willing to overturn Employment Division v. Smith . . Conservatives looking to strengthen religious rights have sought to take down Smith since it was decided in 1990, but it has stubbornly remained. Barrett, though, explored was a post-Smith world might look like. 'What would you replace Smith with?' Justice Barrett wanted to know. . ."
   --Hodgdon's secret garden (talk) 19:49, 17 November 2020 (UTC)

_V._ In Diocese v. Cuomo

1. ...Sotomayor upbraids a concurrence by Kavanaugh she believes misinterprets Smith: ". . Justice Kavanaugh cites Church of Lukumi Babalu Aye, Inc. v. Hialeah, and Employment Div., Dept. of Human Resources of Ore. v. Smith, for the proposition that states must justify treating even noncomparable secular institutions more favorably than houses of worship. Ante, at 2 (concurring opinion). But those cases created no such rule. Lukumi struck down a law that allowed animals to be killed for almost any purpose other than animal sacrifice, on the ground that the law was a " 'religious gerrymander' " targeted at the Santeria faith. Smith is even farther afield, standing for the entirely inapposite proposition that 'the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)'. . ."
2. reason/Josh Blackman [92] - ". . I see very little daylight between actual operation of the per curiam opinion and the Kavanaugh concurrence. At least Kavanaugh had the temerity to say what he was doing. And Justice Sotomayor reamed him or it. She wrote, that Smith and Lukumi do not stand 'for the proposition that states must justify treating even noncomparable secular institutions more favorably than houses of worship.' Sotomayor was correct. But I don't think the current interpretation of Smith will stand for long. . ."
   --Hodgdon's secret garden (talk) 19:46, 28 November 2020 (UTC)
3. nationalreview/Editors[93] - ". . Kavanaugh writes that whenever a policy creates a preferred, less regulated category — 'essential' businesses, in this case — states must either include religion in that category or carry the burden of justifying churches’ exclusion. This strikes us as fair, though it goes somewhat beyond existing precedent[. . . A]ll the Court does is reiterate the law. Americans have a right to worship as they see fit, and the government may encroach on that right only in limited circumstances, which don’t include targeting churches for unjustifiably poor treatment."
   --Hodgdon's secret garden (talk) 19:45, 3 December 2020 (UTC)
4. vox/Ian Millhiser[94] - ". . The holding of Smith is that the state may apply a 'neutral law of general applicability' to a religious objector — only laws that single out people of faith for lesser treatment than secular individuals are suspect under Smith. The Court’s opinion in Roman Catholic Diocese upends this balance by defining what counts as a 'neutral law of general applicability' so narrowly that it is virtually meaningless. . . Diocese effectively writes the rule that Alito advocated in Stormans into the law, and the implications of this decision are likely to be profound. It means that, when someone objects to a law on religious grounds, they will typically be exempt from the law unless the law survives strict scrutiny, because it is very easy to find secular exemptions to even the most unobjectionable laws. . . Diocese suggests that any law is subject to strict scrutiny if a religious objector can point to any exemption to that law. And, as [UCLA law professor] Winkler's research shows, the overwhelming majority of laws subject to full-bore strict scrutiny fail that test. . ."
5. newrepublic/Matt Ford[95] - ". . The unspoken target in the diocese case isn’t really Cuomo or other state officials who impose restrictions to fight the Covid-19 pandemic. It’s two major Supreme Court precedents: Employment Division v. Smith, a landmark ruling on religious freedom exemptions, and Jacobson v. Massachusetts, a case concerning mandatory vaccinations for smallpox[ . . T]he landmark ruling may also not be long for this earth. Earlier this term, the court heard arguments in Fulton v. City of Philadelphia, where it considered directly whether Smith should be overturned. . ."

   ". . In the Brooklyn case [Diocese], Justice Brett Kavanaugh wrote a concurring opinion, in which he claimed that New York's 'discrimination against religion raises a serious First Amendment issue and triggers heightened scrutiny, requiring the State to provide a sufficient justification for the discrimination,' citing Smith and another case. Sotomayor, in her own dissent, noted that neither Smith nor the other case established any such precedent. If anything, she noted, Smith stands for the 'entirely inapposite proposition' of when people with religious beliefs can challenge neutral laws on Free Exercise Clause grounds."
   --Hodgdon's secret garden (talk) 16:37, 4 December 2020 (UTC)

_VI._ In Danville Christian Academy v. Beshear

1. nytimes/Linda Greenhouse [96] - ". . another Covid-related case that reached the Supreme Court this week. In mid-November, Gov. Andrew Beshear of Kentucky issued a temporary order barring in-person instruction in all public and private schools. A religious school, Danville Christian Academy, promptly won an injunction from a federal district judge. A three-judge panel of the United States Court of Appeals for the Sixth Circuit stayed the injunction this past weekend. The court observed that because the order applied to religious and secular schools alike, it was 'neutral and of general applicability,' key words that under a 1990 Supreme Court decision, Employment Division v. Smith, to foreclose a claim under the First Amendment's Free Exercise Clause for a special religious exemption. Claiming that 'it is called by God to provide in-person instruction to its students,' the school has gone to Justice Kavanaugh, who has supervisory jurisdiction over the Sixth Circuit, asking him to vacate the stay of the injunction. The 35-page brief skips almost entirely over the fact that public schools are under the same strictures, asking instead, 'Why can a 12-year-old go to the movies along with two dozen other people, but she can’t watch 'The Greatest Story Ever Told' with a smaller group in Bible class?' Justice Kavanaugh has told Governor Beshear to respond by Friday afternoon. . ."
   --Hodgdon's secret garden (talk) 16:26, 3 December 2020 (UTC)

Nomination

Why is there no mention of when she was actually nominated, when her nomination was sent to the senate which was September 29th? — Preceding unsigned comment added by 69.116.73.107 (talk) 20:05, 2 November 2020 (UTC)

References

Tex-v.-cal/Cal-v.-tex

W rgd severability

Should we include the following in treatment of the ACA?

1. latimes/op-ed[97] - "[. . ]the most conservative members of the court — and most notably Justice Clarence Thomas — don’t want the courts to do the sort of severability analysis that the Supreme Court has been doing. They consider that to be legislating, not judging.[ . . E]ven if Barrett follows Thomas’ lead, both of Trump’s other appointees — Justices Neil M. Gorsuch and Brett M. Kavanaugh — would have to do so as well for the entire ACA to be sunk. Barrett tried several times to downplay the concerns the Democrats on the Senate Judiciary Committee raised about the ACA, even as she assiduously avoided any legal theorizing that might tip her hand. 'The presumption is always in favor of severability,' she said^C-SPAN when asked about the general issue.[ . . ]"
2. advisory.com[98] - ". . Barrett added, 'I think the doctrine of severability serves a valuable function of trying not to undo your work when you wouldn't want a court to undo your work.'^CNN And when asked whether judges should try to maintain an overall law when one part is overturned, Barrett said that was 'true,' adding that judges should never try 'to undermine the policy that Congress enacted.' . ."
   --Hodgdon's secret garden (talk) 16:18, 29 October 2020 (UTC)
         The only thing relevant to this article is how Barrett is going to affect the outcome and we don’t seem to have any source offering enlightenment on that question. I don’t think that her statements about her general approach to severability offer much guidance. — Swood100 (talk) 21:04, 29 October 2020 (UTC)
3. cnn[99] - ". . compared the judicial severability exercise to 'a Jenga game, it's kind of like, if you pull one out, can you pull it out while it all stands? If you pull two out, will it all stand?' She noted that in the current ACA case, only one provision is arguably unconstitutional. Yet Democratic senators were skeptical of Barrett's response. As a University of Notre Dame law professor, Barrett had criticized the Supreme Court's two prior decisions upholding the law. . ."
   --Hodgdon's secret garden (talk) 18:27, 9 November 2020 (UTC)
4. nytimes[100] - ". . the Trump administration and attorneys general from Republican-led states are challenging the A.C.A.’s mandate that Americans must have health insurance. A decision is expected next spring that could kill the law . ."
5. wsj[101] - ". . McConnell of Kentucky, the nation's highest ranking Republican after outgoing President Trump, hasn't openly championed the ACA lawsuit, saying last month that 'no one believes the Supreme Court is going to strike down the Affordable Care Act.' . ."
6. politico[102] - ". . 'I think most people see it as highly unlikely that the law gets struck down. But if the entire law is struck down, it will be very serious chaos,' said Brendan Buck, a health care communications strategist who advised then-House Speaker Paul Ryan during the GOP's 2017 failed effort to repeal Obamacare[ . . S]enators during Barrett’s confirmation hearing sought to downplay the possibility she would vote to overturn the law. 'I don’t think it's likely to happen,' Sen. Roy Blunt (R-Mo.) said . ."
7. usatoday[103] - ". . most court-watchers predict the challenge isn't likely to topple the 10-year-old statute . . . 'Republicans are scrambling to confirm this nominee as fast as possible because they need one more Trump judge on the bench before Nov. 10 to win and strike down the Affordable Care Act,' said Sen. Kamala Harris[ . . A]t least two conservatives – Roberts and Associate Justice Brett Kavanaugh – are likely to find that most of the original, 906-page law does not have to be stricken . ."

ACB's moot-court participation

1. law.wm.edu[104] - ". . experienced Supreme Court advocates present arguments before a panel of mock Supreme Court Justices. . . Advocates Erin Murphy (Kirkland & Ellis) and Pratik Shah (Akin Gump) argued before Professor [Allison Orr] Larsen (acting as Chief) and Justices Amy Barrett (U.S. Court of Appeals, 7th Circuit), Kevin Newsom (U.S. Court of Appeals, 11th Circuit), Stephanos Bibas (U.S. Court of Appeals, 3rd Circuit), Adam Unikowsky (Jenner & Block), Neal Devins (W&M Law), Katherine Crocker (W&M Law), and Joan Biskupic (CNN). The decision came in 5-3 (with one dissent) that there was standing to challenge the individual mandate and a compelling argument that the provision was unconstitutional, but that the whole statute did not fall. The majority reasoned that because the mandate is now set to zero and is not functioning like a tax, it does not fall under one of Congress’s enumerating powers under Article One. Having said that, the court also found it was a severable provision of the ACA, leaving the rest of the law intact. . ."
2. latimes[105] - ". . was part of an eight-judge panel that heard the mock arguments, conducted at William & Mary Law School. None of the judges ruled in favor of the administration and Republican states' request to strike down the law. Five of the judges ruled that one part of the law — the so-called individual mandate, which Congress has already effectively nullified — was unconstitutional, but that the rest of the healthcare law could stay in place. The other three judges would have thrown out the case, arguing that the conservative states challenging the law did not have standing to bring the suit. It's not known which side Barrett was on . ."
   --Hodgdon's secret garden (talk) 16:31, 9 November 2020 (UTC)

Oral arguments

1. catholicnewsagency[106] - ". . Barrett on Tuesday asked Michael Mongan, California’s Solicitor General who argued in favor of keeping the law intact, if individuals could still claim 'injury' by the law without a financial penalty, if the government were to track their purchase of health care. She also asked Kyle Hawkins, Solicitor General of Texas, which government entity would cause an 'injury' to someone bringing a lawsuit . ."
2. politico[107] - ". . Barrett suggested that the plaintiffs’ complaint may not lie with the federal agencies they are suing, but with the lawmakers who changed Obamacare. 'Doesn’t it seem that Congress is the one who injured the individual plaintiffs?' Barrett said. 'You cannot sue Congress.' Conservative judges tend to want plaintiffs to meet fairly tough standards before they can bring a case, although the Republican-appointed judges in lower courts who sided with Obamacare’s challengers have mostly shrugged off questions about standing. If the justices find the plaintiffs have standing, then the case likely hinges on a legal concept known as severability. . ."
3. newyorker[108] - ". . The standing question is a complicated one in this case, partly because it, too, got tangled up with the severability question—basically, the A.C.A. challengers suggested that being harmed by parts of the law other than the mandate might give them standing—and Barrett was not the only Justice who probed it. Her last line of questioning, to Jeffrey Wall, the acting Solicitor General of the U.S., was among her most revealing. She pushed him to agree that members of Congress might, in zeroing out the penalty, have been doing something that they knew to be unconstitutional. . ."
4. rev.com [109] - " '. . Let’s say that we agree with you that the mandate by making them feel legal, a compulsion to purchase insurance has caused them a pocketbook injury. Why is that traceable to the defendants that the individuals have actually sued here? I can see how it’s caused by or traceable to the mandate itself, but how is it traceable say to the IRS or to HHS? Why is it their action that’s actually inflicting the injury? . . Doesn’t it really seem that Congress is the one who’s injured the individual plaintiffs here, and you can’t sue Congress and say, "Hey, you’ve put us under this mandate that’s forcing us to buy insurance and that’s harming us." . .' "
   --Hodgdon's secret garden (talk) 18:40, 11 November 2020 (UTC)

Tightly or loosely cropped portrait

Aréat, Sundayclose, and I prefer the cropped portrait which is currently in the infobox, but The Image Editor prefers the more loosely cropped portrait that had previously been there.--Epiphyllumlover (talk) 01:20, 9 November 2020 (UTC)

I reverted The Image Editor. They have an extensive history of changing images without discussion. See User talk:The Image Editor and WP:ANI#The Image Editor making mass undiscussed changes to bio infobox images/edit warring. Sundayclose (talk) 01:24, 9 November 2020 (UTC)

Thanksgiving-eve decision Diocese V. Cuomo

1. lawandcrime[110] - "Catholic Church Asks SCOTUS to Overturn Cuomo’s COVID-19 Restrictions"
2. religiondispatches[111] - ". . on the final page of the 184-page QFR [Questions for the Record], in the final question, one from Senator Marsha Blackburn (R-TN.) . .:

   "'QUESTION: States have the authority and responsibility to protect the health of their citizens, but they must also uphold First Amendment protections—including the free exercise of religion. Recently, some churches across the country have asserted their rights have been infringed because of states selectively enforcing public health restrictions on places of worship. Do states infringe on the free exercise of religion when they selectively restrict a religious gathering as a matter of enforcement discretion?

   "'[ACB's] RESPONSE: The Supreme Court has explained that "[o]fficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality" and that "[t]he Free Exercise Clause protects against governmental hostility which is masked, as well as overt." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993). The application of these principles to public health restrictions is a matter of ongoing legal dispute." . ."
   --Hodgdon's secret garden (talk) 16:20, 14 November 2020 (UTC)

3. newrepublic[112] - ". . The Brooklyn diocese argued last week that lower courts have interpreted Jacobson and Roberts’s own concurring opinion as creating “a blanket rule of rational-basis review—and effective carte blanche to impose unfettered restrictions on houses of worship—for the duration of the pandemic, regardless of how circumstances have evolved over time.” It asks that the courts instead evaluate these restrictions through strict scrutiny, a legal standard that places a far higher burden on the government to justify its actions. Had the case reached the court in July or August, the diocese would likely have been out of luck. . . Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissented without comment from the California ruling, signaling that it had been reached by Roberts and the court’s four liberals at the time. Legal observers generally expect Barrett, the court’s newest member, to vote closer to those four justices than to Roberts in most cases. . . With a vaccine hopefully imminent, the Supreme Court probably won’t be able to substantially change how the country responded to this pandemic. But it may define how future generations of Americans respond to the next one."
   --Hodgdon's secret garden (talk) 19:33, 17 November 2020 (UTC)

I support inclusion, especially of your religiondispatches referenced material--Epiphyllumlover (talk) 20:12, 16 November 2020 (UTC)

It's not clear to me what's being proposed for inclusion. The above question and answer don't seem that illuminating. What should the reader understand from this? What would be included from religiondispatches? — Swood100 (talk) 00:57, 17 November 2020 (UTC)

It would clarify the coronavirus response section. It would let the reader know that she does not support discriminatory coronavirus measures being enacted against religious groups.--Epiphyllumlover (talk) 19:01, 17 November 2020 (UTC)

But as far as the question and answer listed above are concerned, all Barrett is doing is stating existing Supreme Court precedent. How does that help us understand whether or not she approves of that precedent or would vote to change it? — Swood100 (talk) 19:34, 17 November 2020 (UTC)

It is not necessary to know "whether or not she approves" for certain. But what she has stated could be included anyway.--Epiphyllumlover (talk) 22:03, 17 November 2020 (UTC)

• politico[113] - ". . granting emergency relief to Roman Catholic churches and to Jewish congregations in New York demonstrated, as many suspected, that Barrett would side with the court’s most conservative justices in insisting on greater accommodation for religion . . Barrett did not write a separate opinion in the two New York cases, but the orders signaled that she was part of the majority . ."
  --Hodgdon's secret garden (talk) 16:11, 26 November 2020 (UTC)

Not everyone in the dissent, however, was in favor of leaving the original 10- and 25-person occupancy limits. Roberts said that no injunctive relief was necessary since the Governor had already revised the order so that now “the applicants can hold services with up to 50% of capacity, which is at least as favorable as the relief they currently seek. Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive.” This is in line with Roberts generally not wanting the Supreme Court to step into the process before the relevant court of appeals has had its say. So what it says about Barrett is that she is willing for the Supreme Court to step into these matters preemptively, without waiting for the court of appeals. — Swood100 (talk) 19:21, 27 November 2020 (UTC)

Or that she is worried about having her vote misinterpreted by the press as being insufficiently pro-religion. — Swood100 (talk) 19:27, 27 November 2020 (UTC)

1. npr/UofIll.'s Robin Fretwell Wilson[114] - ". . every person writing on the court acknowledges that fact, that this [cuomo's exec order] was the most extreme. . ." (Note: I've trimmed article text, placing this fact in wikivoice: diff.)--Hodgdon's secret garden (talk) 00:09, 28 November 2020 (UTC)--Hodgdon's secret garden (talk) 19:05, 28 November 2020 (UTC)
2. reason/Josh Blackman [115] - ". . South Bay may have become Chief Justice Roberts's most influential precedent during his entire tenure on the Court. . ."

Blackman[116] - ". . Chief Justice Robert's South Bay concurrence is no longer a super-precedent. Really, it was never even a precedent in the first place. Yet, courts had cited it 114 times in the past six months. But Diocese will likely be the last citation. Courts can no longer look to the Chief's opinion as the definitive statement for pandemic cases. I'm sure some will try. And there are five votes to reject those efforts. . ."
--Hodgdon's secret garden (talk) 19:22, 28 November 2020 (UTC)

Hodgdon's secret garden: Why did you remove:

Furthermore, he wrote, "it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic."

and then insert:

Justice Sotomayor, joined by Justice Kagan, said in a dissent, "Justices of this court play a deadly game in second-guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily."

It was the same thing said by two different justices. I thought you were just trying to trim the entry, since a paragraph for each case Barrett participates in is going to get verbose. — Swood100 (talk) 19:02, 28 November 2020 (UTC)

I don't object to the earlier version being reinstated. What had happened is that after I'd removed it for purposes of brevity I 2nd-guessed, inasmuch as it now had come to not grant any space to dissents! But, when reinserting something, I quoted an Obama- as opposed to W.Bush- appointee, thinking such might be a slightly better choice toward wp:Balance.--Hodgdon's secret garden (talk) 19:35, 28 November 2020 (UTC)

The quote is currently in reference 152. I prefer using efn notes, but wonder what others think.--Epiphyllumlover (talk) 00:33, 7 December 2020 (UTC)

I've now removed this repetition here (diff). Thanks, user:Epiphyllumlover, for head's up.--Hodgdon's secret garden (talk) 19:18, 7 December 2020 (UTC)

• usatoday/Laurence Tribe & Michael C. Dorf [117] go there! - ". . A court that affords no protection to unenumerated rights to bodily integrity and privacy, while simultaneously eroding the separation of church and state would look less like our familiar institution and more like the highest judicial authority of a place like Gilead — the theocratic and misogynist country in Margaret Atwood's dystopian 'The Handmaid's Tale.' "
  --Hodgdon's secret garden (talk) 15:27, 1 December 2020 (UTC)

In case anybody thought that the Living Constitutionalists had given up. — Swood100 (talk) 17:15, 1 December 2020 (UTC)

1. nytimes/Linda Greenhouse [118] - ". . the court’s Nov. 25 decision as the first moment of fruition for the hopes and fears engendered by her abrupt election-eve ascension to the Supreme Court[ . . T]his past summer, the court ruled that a state that offers a subsidy for private-school tuition must include parochial schools in the program; that religious organizations may exclude a substantial category of employees from the protections of federal civil rights laws under a 'ministerial exception' that goes well beyond members of the ministry; and that employers with religious or even vague 'moral' objections to contraception can opt out of the federal requirement to include birth control in their employee health plans. . . The Supreme Court has become a prize in a war over how far the country will go to privilege religious rights over other rights, including the right not to be discriminated against. A case the court heard last month, Fulton v. City of Philadelphia, raises the question whether a Catholic social services agency under contract with the city to place children in foster homes can refuse to consider same-sex couples as foster parents despite the city’s nondiscrimination law. . . In a group of 89 such cases, Democratic-appointed judges voted to uphold all the government orders, while Republican-appointed judges did so only 36 percent of the time. The difference is even more stark with judges appointed by President Trump. They voted to uphold the orders in only 6 percent of cases, voting 94 percent of the time in support of the religious plaintiffs. Numbers like this pose an obvious question: Are Trump-appointed judges supporting religious claims as a matter of personal faith, or has voting to uphold religious claims become a kind of judicial MAGA cap, a mark of political identity? . ."
   --Hodgdon's secret garden (talk) 16:20, 3 December 2020 (UTC)
2. realclearpolitics/Sean Trende - ". . Shutting down churches, or limiting attendance at them to 10 people, is a really big deal that strikes at the core of First Amendment guarantees. It’s the equivalent of closing down women’s health clinics or shuttering printing presses. That’s not to say this can never be done – some degree of wartime censorship is probably allowable, and perhaps appropriate. At the same time, if you’re not uncomfortable and cautious when it happens, you should probably reassess some things. . . To determine whether the law is neutral and generally applicable, the court examined the burden placed on religions: In a so-called “red zone” of pandemic spread, churches were restricted to 10 congregants, while in an orange zone they were restricted to 25 – and compared it to the burdens placed on secular entities. Among those groups, businesses deemed essential are entitled to admit as many people as they like. . . In orange zones, the court notes, all businesses are entitled to decide for themselves how many people to allow. This differential treatment, notes the court, is enough to find that the law is not neutral and generally applicable[. . .T]he court essentially says, because of the First Amendment concerns, churches are essential businesses. Therefore, to be a neutral law the state much treat churches in the same way as were other essential businesses . . If a law is not a neutral law of general applicability, a government may still burden religions if the law is narrowly tailored to a compelling governmental interest. The court doesn’t dispute that fighting a dangerous virus is a compelling governmental interest, so the question is what a “narrowly tailored” burden would be. As it turns out – and most of the critical analyses of the decision overlooks this – the court says that governmental actors can do quite a bit. They could, for example, impose an occupancy requirement that is tied to the fire code limitation on the building. In a small corner chapel it might make sense to limit the congregation to 10 occupants. In St. Patrick’s Cathedral, however, it probably doesn’t matter whether 10 or 25 or 100 occupants are present. . . What governments cannot do under this decision is what New York did: Take a blunderbuss approach to a constitutionally protected activity. . . The dissent is not without its points. I don’t think the issue is so cut-and-dried that the result is compelled. But the actual majority opinion is not as strident or wide ranging as much of the commentary would suggest. . ."
3. nytimes/Bret Stephens [119] - ". . there are no second-class rights — and the right to the free exercise of religion is every bit as important to the Constitution as the right to assemble peaceably, petition government for redress and speak and publish freely. . . The victory for conservatives in last week's ruling will be a victory for liberals somewhere down the road. . ."
   --Hodgdon's secret garden (talk) 19:51, 3 December 2020 (UTC)Hodgdon's secret garden (talk) 18:32, 3 December 2020 (UTC)

Commenting as I've not had the time to search for more sources but the talking points were often about "religious discrimination" while there's an obvious false balance between the epidemiology technicalities of allowing extended group gatherings versus allowing a member of the household to buy groceries (in times of high alert level). It is not discrimination to recognize that (and also applies to other gathering situations). I would be surprised if no source in the context clarifies this. —PaleoNeonate – 06:30, 2 December 2020 (UTC)