Scotus Justice Bombshell

Tradition is not an end in itself.

Conservatives are really furious with Supreme Court Justice Amy Coney Barrett. That’s because they’re being misled by a smear attack in the press. If all you catch are the snippets and soundbites, you would be left with the impression that Barrett has become a total heretic to conservative values, just so she can split the right side of the court like some liberal sleeper cell. The truth is that she simply refuses to drink the Kool Aid only because they’ve been drinking that same flavor forever. If a better idea manages to come along, shouldn’t it at least be considered?

Justice isn’t totally blind

Justice Amy Coney Barrett is being accused of creating a “rift” between the Supreme Court’s conservatives. Liberals are hoping it “could thwart the court’s recent march to expand gun rights.” Barrett finds herself butting heads with “the court’s oldest and most conservative” heavyweight, Clarence Thomas.

The core of their dispute is deciding how much weight to give “history and tradition” when deciding today’s legal issues. Since our nation was founded, we went from quill pens and inkwells to word processors and 2,000 page bills in legislation. Technology isn’t the only thing that’s changed.

SCOTUS is working a bunch of high profile cases this term and all eyes are especially focused on one involving the Second Amendment right to bear arms. United States v. Rahimi is a challenge to the federal law “denying firearms to people under domestic violence restraining orders.

Justice Thomas has his mind made up already. All the history and precedent says even crazy people, who attack their family members for fun, have the right to bear arms. Barrett wants to push that envelope a little and maybe consider circumstances justifying the restriction.

Barrett isn’t making the same mistake as liberals who think the constitution should be ignored simply because it’s old and “outdated.” The right-leaning justice maintains great respect for legal precedent and the wisdom of not trying to re-invent the wheel over and over again.

The views of preceding generations can persuade, and, in the realm of stare decisis, even bind,” Barrett wrote. That funky Latin phrase simply means “adhere to past rulings.” Tradition is great, Barrett declares, “but tradition is not an end in itself — and I fear that the Court uses it that way here.

The flexibility Barrett contemplates requires “at least one other conservative to pivot away from the strict approach.”

It’s a paradox

Justice Barrett notes that things get a little twisted. “Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests. But a rule rendering tradition dispositive is itself a judge-made test.

Doing something simply because that’s how it’s always been done is a huge mistake.

In my view, the Court’s laser-like focus on the history of this single restriction misses the forest for the trees” Justice Barrett wrote, referring to a recent trademark case where the issue popped up in argument.

I see no reason to proceed based on pedigree rather than principle.” She prefers a “less demanding, more flexible historical test.

Even if Barrett did lose her mind and go rogue, it wouldn’t have much effect. Not unless another conservative justice agrees. The flexibility Barrett contemplates requires “at least one other conservative to pivot away from the strict approach.

In a previous case involving the admissibility of confessions by co-conspirators, Barrett noted “while history is often important and sometimes dispositive, we should be discriminating in its use. Otherwise, we risk undermining the force of historical arguments when they matter most.