Justice Amy Coney Barrett, a mind of her own

Jodi Kantor, How Amy Coney Barrett Is Confounding the Right and the Left, NYTimes, June 17, 2025.

As President Trump was leaning toward appointing Amy Coney Barrett to the Supreme Court five years ago, some advisers shared doubts about whether she was conservative enough. But he waved them away, according to someone familiar with the discussions. He wanted a nominee religious conservatives would applaud, and with an election approaching, he was up against the clock.

Soon after Justice Barrett arrived at the court she began surprising her colleagues. Chief Justice John G. Roberts Jr. assigned her to write a majority opinion — among her first — allowing the seizure of state property in a pipeline case, according to several people aware of the process. But she then changed her mind and took the opposite stance, a bold move that risked irritating the chief justice.

In another early case, as Justice Samuel A. Alito Jr. tried to further his decades-long quest to expand the role of religion in public life, she preferred a more restrained route, setting off a clash in their approaches that continues. And in a key internal vote, she opposed even taking up the case that overturned Roe v. Wade and the federal right to abortion, though she ultimately joined the ruling.

Now Mr. Trump is attacking the judiciary and testing the Constitution, and Justice Barrett, appointed to clinch a 50-year conservative legal revolution, is showing signs of leftward drift.

She has become the Republican-appointed justice most likely to be in the majority in decisions that reach a liberal outcome, according to a new analysis of her record prepared for The New York Times. Her influence — measured by how often she is on the winning side — is rising. Along with the chief justice, a frequent voting partner, Justice Barrett could be one of the few people in the country to check the actions of the president.

Whoops! On presidential power:

“She hasn’t found a team,” said Sarah Isgur, a legal podcast host, pointing to her habit of marking where she departs from conservative colleagues, and to a recent death penalty ruling in which she was sitting “in the middle of that decision.”

But the Trump administration’s conflict with the courts and pushing of constitutional boundaries may force her to take a more decisive stance. Of the three justices at the center of the court, where the most influence lies, she is the only one without a long trail of views on how much power a president should have — the issue at the heart of nearly all these cases.

“She doesn’t have 10 years to mellow into it,” Mr. Feldman said. “Now is the crisis.”

Not at all like Trump:

The ramrod-straight jurist had little in common personally with Mr. Trump. “When I think of Amy, I think of someone deeply devoted to family and faith, who does not seek out the limelight, who is humble and just wants to quietly do the work,” said Amanda Tyler, a law professor at Berkeley, former clerk to Justice Ginsburg and longtime friend to Justice Barrett. To lawmakers, the nominee stressed her independence. Got a confidential news tip?

But the president had already said the justices he appointed would be “automatic” votes to overturn Roe v. Wade. On the public stage, certain facts (her large family and membership in a religious community that had once called women leaders “handmaids”) overshadowed others (when she became a federal judge, every member of her clerkship class, liberals included, endorsed her). Partisans said she stood for their greatest hopes or worst fears. She was confirmed without a single Democratic vote. [...]

So far, Justice Barrett’s record on Trump-related votes is short but suggestive. Usually, justices show what scholars call “appointment bias,” leaning slightly in favor of the presidents who appointed them.

She has gone in the other direction. Because emergency orders are tentative, and not every vote is disclosed, the evidence is limited. But she is the Republican appointee who appears to have voted least often for Mr. Trump’s position, based on three cases decided last year stemming from his attempts to subvert the 2020 election, as well as 14 emergency applications since then arising from his sentencing in New York and recent blitz of executive orders.

There's more at the link.

H/t Tyler Cowen.

Are the Justices of the Supreme Court above justice?

Jodi Kantor and Abbie VanSickle, Inside the Supreme Court Ethics Debate: Who Judges the Justices? NYTimes, Dec. 3, 2024.

President Biden and Democratic lawmakers have called for a code with teeth. Justices Elena Kagan and Ketanji Brown Jackson have publicly pledged support for an enforcement mechanism. Outside legal experts have circulated proposals that would enlist the guidance of other federal judges. The conservative pushback has been strong and sometimes furious.

Now the election of former President Donald J. Trump, and a new era of unified Republican government, are raising the stakes for a branch supposed to serve as an independent guardrail. The court, which has a conservative supermajority, is already perceived as partisan by many Americans. And the justices largely appear to be split along the same lines on how far to go to ensure that its rules are followed.

Outside the court, critics say they are trying to bolster trust in the institution by holding the justices to similar standards as lower-court judges. Because no outsiders are involved in enforcing the new code, it lacks “any way to give the justices a chance to look in the mirror,” said Jeremy Fogel, a retired federal judge appointed by President Bill Clinton and a judicial ethics expert who recently proposed an enforcement plan.

Many conservatives, however, suspect liberals of trying to make ideologically driven incursions on the court. “I’m distrustful of calls for reform or change, because they’re so motivated by antipathy to the current court’s decisions,” said Thomas Griffith, a retired federal judge appointed by President George W. Bush. He and others argued that more stringent oversight could weaken the court’s integrity, because it could be used as a weapon, or give rise to constant warfare about which justices would hear each case.

There's much more at the link.

Putting this in terms of the cognitive ranks account that David Hays and I have developed about cultural evolution, I'd say this is Rank 2 (conservatives) vs. Rank 3 (liberals) thinking about social matters. I don't have time to explain now, but if you're curious, take a look at Politics, Cognition, and Personality (David Hays) and The Evolution of Cognition (Benzon and Hays).

Lawfare analysts on Trump's immunity case before the Supreme Court

Matt Gluck, Hyemin Han, Quinta Jurecic, Natalie K. Orpett, Roger Parloff, Alan Z. Rozenshtein, “For the Ages”: The Supreme Court Hears the Presidential Immunity Defense, April 26, 2024.

Introductory remarks:

On April 25, the U.S. Supreme Court heard oral arguments in Trump v. United States, the case arising from the Special Counsel’s Office’s decision to charge former president Donald Trump for his effort to overturn the results of the 2020 election. Trump has argued that he is absolutely immune from the charges brought by the Justice Department because, he asserts, they target his official presidential conduct. The U.S. District Court for the District of Columbia rejected Trump’s argument that he enjoys absolute criminal immunity for his official acts, and the U.S. Court of Appeals for the D.C. Circuit affirmed that ruling.

Despite the nearly three hours of oral argument, only a portion of that time was spent on the particulars of the Jan. 6 case or its procedural posture. That’s because the justices were, as Justice Gorsuch put it, writing a ruling “for the ages.” The Court grappled with the distinction between private acts and official acts—everyone seemed to agree that private acts could be prosecuted—and then wrestled with which subset of official acts, if any, could be prosecuted. Several justices further focused on which criminal statutes can apply to the president without conflicting with his Article II powers. There did not appear to be much consensus on these questions, and the justices seem poised to issue a splintered decision rejecting Trump’s maximalist arguments, while establishing at least some presidential criminal immunity for at least some types of official acts.

The Court could send the case down several different paths to resolve and eventually move past the immunity issue, but none is likely to lead to a quick resumption of the trial in Judge Tanya Chutkan’s courtroom.

Then we have analysis of remarks by the advocates and by each justice.

Concluding remarks:

The justices seem certain to send the case back to either the court of appeals or, more likely, the district court for further proceedings. Precisely what those proceedings will look like, what they will decide, and whether the findings reached therein would, themselves, be subject to a second interlocutory appeal, all remain very live questions.

Even Sauer acknowledged that certain accusations of the indictment concerned purely private acts, and that a former president could at least theoretically be charged with crimes based solely upon those. But much of the indictment also alleges that Trump used the trappings of his office for personal gain. And the justices appeared deeply split over whether these sorts of acts were protected by some sort of immunity and, if so, whether it was absolute or qualified.

Likewise unclear—and decisive in terms of whether this case can yet conceivably be tried before the election—is what sort of procedures the Court will require the lower court to engage in to resolve whatever questions the Court wants resolved. If the case returns to Judge Chutkan, one possibility is that she could proceed with the current indictment, as is, and simply instruct the jurors that certain accusations can only be used as evidence of Trump’s intent—not as a basis for finding him criminally culpable. Another is that she would have to “expunge” certain accusations and that even evidence of that conduct would be precluded from being introduced at trial. Still another is that Judge Chutkan would need to hold some sort of evidentiary hearing. Finally, in any of these scenarios, the crowning question will be whether Trump will be entitled to make an interlocutory appeal on whatever findings Judge Chutkan makes—ensuring that no trial could take place for many months to come.

It looks increasingly unlikely that this case will be tried before the election. And if Trump wins that election, the case will likely never be tried at all.

Crisis in the American body politic: Is democracy over?

Michelle Goldberg, The Authors of ‘How Democracies Die’ Overestimated the Republicans, NYTimes, Sept. 11, 2023. This is commentary on a new book by Steven Levitsky and Daniel Ziblatt, Tyranny of the Minority. After three introductory paragraphs:

“Tyranny of the Minority” is their attempt to make sense of how American democracy eroded so fast. “Societal diversity, cultural backlash and extreme-right parties are ubiquitous across established Western democracies,” they write. But in recent years, only in America has a defeated leader attempted a coup. And only in America is the coup leader likely to once again be the nominee of a major party. “Why did America, alone among rich established democracies, come to the brink?” they ask.

A disturbing part of the answer, Levitsky and Ziblatt conclude, lies in our Constitution, the very document Americans rely on to defend us from autocracy. “Designed in a predemocratic era, the U.S. Constitution allows partisan minorities to routinely thwart majorities, and sometimes even govern them,” they write. The Constitution’s countermajoritarian provisions, combined with profound geographic polarization, have locked us into a crisis of minority rule.

Liberals — myself very much included — have been preoccupied by minority rule for years now, and you’re probably aware of the ways it manifests. Republicans have won the popular vote in only one out of the last eight presidential elections, and yet have had three Electoral College victories. The Senate gives far more power to small, rural states than large, urbanized ones, and it’s made even less democratic by the filibuster. An unaccountable Supreme Court, given its right-wing majority by the two-time popular-vote loser Trump, has gutted the Voting Rights Act. One reason Republicans keep radicalizing is that, unlike Democrats, they don’t need to win over the majority of voters.

All liberal democracies have some countermajoritarian institutions to stop popular passions from running roughshod over minority rights. But as “Tyranny of the Minority” shows, our system is unique in the way it empowers a minority ideological faction at the expense of everyone else. And while conservatives like to pretend that their structural advantages arise from the judicious wisdom of the founders, Levitsky and Ziblatt demonstrate how many of the least democratic aspects of American governance are the result of accident, contingency and, not least, capitulation to the slaveholding South.

In her last paragraph Goldberg quotes Ziblatt:

“I think the United States faces a high risk of serious and repeated constitutional crisis, what I would call regime instability, quite possibly accompanied by some violence,” said Levitsky. “I’m not as worried about the consolidation of autocracy, Hungary or Russia-style. I think that the opposition forces, civil society forces, are probably too strong for that.” Let’s hope that this time he’s not being too optimistic.

ChatGPT the legal beagle: Concepts, Citizens United, Constitutional Interpretation

Though I wasn’t looking for this when I started playing with ChatGPT on December 1st, it has turned out that I spent a lot of time exploring its capacity to deal with abstract concepts of a kind whose meaning is defined by patterns of other words, in particular, by stories. That’s an intellectual territory I know well, having spent a great deal of time exploring it in graduate school in the Ancient Days (the 1970s) in the computational linguistics work group led by David Hays – something I’ve discussed briefly in the post, Abstract concepts and metalingual definition: Does ChatGPT understand justice and charity?

Thus it is natural, I suppose, that I would head for home territory in my first major “interrogation” of ChatGPT. Steven Spielberg’s Jaws is a movie, I am trained in interpreting movies – actually, I was trained in interpreting literary texts, but movies are texts as well, no? – so I put ChatGPT through its paces in an interpretation of Jaws. I did more of that, with Spielberg’s A.I. Artificial Intelligence and with Tezuka’s Astro Boy stories.

So it’s natural that I would think of the law. Laws are texts. Trials are transcribed into texts. Judges and juries are asked to apply the law, a body of abstract concepts, to particular cases, cases they know through evidence presented to them, often in the form of stories.

In this post I present transcripts of three recent sessions I had with ChatGPT. The first considered a few general concepts. The second consists of a single issue involving Citizens United, the distinction between natural and juristic persons. The third session concerned Constitutional interpretation.

Session of 12.25.22: Legal Concepts

In law, what is a juristic person? Give me a definition and some examples.

A juristic person, also known as a "legal person" or "artificial person," is a non-human entity that is treated as a person in the eyes of the law. This means that the law recognizes the entity as having certain rights and responsibilities that are similar to those of a natural person (a human being).

Examples of juristic persons include:

Corporations: A corporation is a business entity that is legally separate from its owners (known as shareholders). This means that the corporation can enter into contracts, own property, and incur debts in its own name.

Limited liability companies (LLCs): An LLC is a business entity that combines elements of both a corporation and a partnership. Like a corporation, an LLC is a separate legal entity from its owners (known as members), and it can enter into contracts and own property in its own name.

Nonprofit organizations: Nonprofit organizations, such as charitable foundations or religious institutions, are often treated as juristic persons under the law. This allows them to enter into contracts and own property in their own name, as well as to receive tax-exempt status.

Governments: Governments, including local, state, and federal governments, are often treated as juristic persons under the law. This allows them to enter into contracts, own property, and exercise certain powers and duties in their own name.

Trusts: A trust is a legal arrangement in which one or more persons (called trustees) hold property on behalf of one or more beneficiaries. The trust itself is often treated as a juristic person, which allows it to own property and enter into contracts in its own name.

Can officers of a corporation be held personally liable for acts committed by the corporation?

In general, officers of a corporation are not personally liable for the debts or obligations of the corporation. This is because a corporation is a separate legal entity from its owners and officers, and the law generally treats the corporation as being responsible for its own actions and liabilities.

However, there are certain situations in which the personal liability of corporate officers may be imposed. For example:

Personal guarantees: If an officer of a corporation personally guarantees a debt or obligation of the corporation, he or she may be held personally liable for that debt or obligation if the corporation is unable to pay.

Fraud or wrongdoing: If an officer of a corporation engages in fraud or other wrongdoing, he or she may be held personally liable for the damages caused by that conduct. This can include situations where the officer has acted outside the scope of his or her authority or has breached a fiduciary duty owed to the corporation or its shareholders.

Piercing the corporate veil: In some cases, a court may "pierce the corporate veil" and hold the owners or officers of a corporation personally liable for the debts or obligations of the corporation. This is typically done when the corporation has not been operated as a separate legal entity (for example, if the owners or officers have commingled personal and corporate assets or have not kept proper corporate records).

It is worth noting that the liability of corporate officers can vary from jurisdiction to jurisdiction. In some cases, the laws of the state in which the corporation is incorporated may govern the liability of its officers, while in other cases the laws of the state where the corporation does business may apply.

What can you tell me about when the idea of a corporation arose in Western history? The concept of a corporation as a separate legal entity from its owners has a long history in Western legal traditions.

One of the earliest forms of the corporation was the Roman "collegium," which was a group of individuals who were united for a common purpose, such as a trade guild or religious association. The Roman concept of the collegium was later adopted and developed in medieval Europe, where it was used to create associations such as town guilds and religious orders.

The modern corporation, as we know it today, began to take shape in the 16th and 17th centuries. During this time, European monarchs and governments began to grant charters to private companies that were formed to engage in trade or exploration. These charters granted the companies certain privileges and protections, such as the right to own property and enter into contracts, and treated the companies as separate legal entities from their owners.

In the United States, the first corporations were chartered by the individual states. The first corporate charter was granted by the state of Massachusetts in 1629 to the Massachusetts Bay Company, which was formed to engage in trade and colonization in the New World. Over time, the concept of the corporation spread and was adopted by other countries around the world.

What can you tell me about the legal organization of the Catholic Church in the Middle Ages? For example, who owned church property, the local bishop?

In the Middle Ages, the Catholic Church was a major landowner and had a complex legal organization. The church's property and assets were typically held by religious orders, such as monasteries or convents, or by individual churches or cathedrals. These entities were often treated as juristic persons, which meant that they were recognized as having certain rights and responsibilities under the law.

The local bishop was responsible for the administration and oversight of the church's property and assets within his diocese (a geographic region comprising a group of parishes). However, the ultimate ownership of church property was typically vested in the pope or the Holy See (the central governing body of the Catholic Church).

The Catholic Church also had a system of canon law, which was a separate legal system that applied to matters within the church. Canon law dealt with a wide range of issues, including the governance of the church, the conduct of clergy, and the regulation of religious orders. Canon law was administered by church courts, which were headed by bishops and other church officials.

In addition to its legal organization, the Catholic Church also played a significant role in the political and social life of medieval Europe. The church was often a major landowner and had significant influence over the rulers and governments of the time. As a result, the legal organization of the church was closely intertwined with the broader legal and political landscape of the period.

What is meant by habeus corpus?

Habeas corpus is a legal principle that requires a court to review the lawfulness of a person's detention and to order the release of the person if the detention is found to be unlawful. The writ of habeas corpus, also known as the "great writ," is a court order that requires a person who is being detained to be brought before a court or judge so that the court can determine whether the detention is lawful.

The principle of habeas corpus is designed to protect individuals from arbitrary or unlawful detention by the government. It allows individuals who are being detained to challenge their detention in court and to have their case reviewed by an independent judicial authority.

The writ of habeas corpus has a long history and has played an important role in protecting the rights of individuals throughout the world. It is considered a fundamental principle of the rule of law and is protected by various international human rights instruments.

In the United States, the writ of habeas corpus is protected by the Constitution, which states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." This means that, in most cases, the government cannot lawfully detain an individual without judicial review and cannot suspend the writ of habeas corpus without just cause.

Heather Cox Richardson on the current Republican Party & its vision of rule by wealthy white men

Heather Cox Richardson, June 24, 2022, Letters from an American.

Reflecting on 2 things:

At yesterday’s hearing of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, we heard overwhelming proof that former president Trump and his congressional supporters tried to overturn the will of the voters in the 2020 presidential election and steal control of our country to keep a minority in power.

Today, thanks to three justices nominated by Trump, the Supreme Court stripped a constitutional right from the American people, a right we have enjoyed for almost 50 years, a right that is considered a fundamental human right in most liberal democracies, and a right they indicated they would protect because it was settled law.

Promoting and protecting the rule of law by a few wealthy white men:

The Dobbs decision marks the end of an era: the period in American history stretching from 1933 to 1981, the era in which the U.S. government worked to promote democracy. It tried to level the economic playing field between the rich and the poor by regulating business and working conditions. It provided a basic social safety net through programs like Social Security and Medicare and, later, through food and housing security programs. It promoted infrastructure like electricity and highways, and clean air and water, to try to maintain a basic standard of living for Americans. And it protected civil rights by using the Fourteenth Amendment, added to the U.S. Constitution in 1868, to stop states from denying their citizens the equal protection of the laws.

Now the Republicans are engaged in the process of dismantling that government. For forty years, the current Republican Party has worked to slash business regulations and the taxes that support social welfare programs, to privatize infrastructure projects, and to end the federal protection of civil rights by arguing for judicial “originalism” that claims to honor the original version of the Constitution rather than permitting the courts to protect rights through the Fourteenth Amendment.

But most Americans actually like the government to hold the economic and social playing field level. So, to win elections, Republicans since 1986 have suppressed votes, flooded the media with propaganda attacking those who like government action as dangerous socialists, gerrymandered congressional districts, abused the Senate filibuster to stop all Democratic legislation, and finally, when repeated losses in the popular vote made it clear their extremist ideology would never again command a majority, stacked the Supreme Court.

The focus of the originalists on the court has been to slash the federal government and make the states, once again, the centerpiece of our democratic system. That democracy belonged to the states was the argument of the southern Democrats before the Civil War, who insisted that the federal government could not legitimately intervene in state affairs. At the same time, though, state lawmakers limited the vote in their state, so “democracy” did not reflect the will of the majority. It reflected the interests of those few who could vote.

State governments, then, tended to protect the power of a few wealthy, white men, and to write laws reinforcing that power.

Hey, let's get rid of regulation while we're at it:

We are still waiting on another potentially explosive decision in West Virginia v. Environmental Protection Agency, in which the court will decide if Congress can delegate authority to government agencies as it has done since the 1930s. If the court says Congress can’t delegate authority, even if it waters that argument down, government regulation could become virtually impossible. Having taken the federal government’s power to protect civil rights, it would then have taken its power to regulate business.

And yet, just yesterday, the court struck down a New York state law restricting the concealed carrying of guns on the grounds that history suggested such a restriction was unconstitutional. In fact, in both the Dobbs decision and the New York State Rifle & Pistol Association v. Bruen, the court used stunningly bad history, clearly just working to get to the modern-day position it wanted. Abortion was, in fact, deeply rooted in this nations history not only in the far past but also in the past 49 years, and individual gun rights were not part of our early history.

The court is imposing on the nation a so-called originalism that will return power to the states, leaving the door open for state lawmakers to get rid of business regulation and gut civil rights, but its originalism also leaves the door open for the federal government to impose laws on the states that are popular with Republicans.

There's more at the link.