It can be more like seeing the world through the eyes of a toddler than lawyer, the shock and surprise when a judge you vilified because she was appointed by the president you despise, the judge who was going to destroy all the good of the law and strip decent people of those emanations and penumbras that get in the way of enumerated rights. And then suddenly, without warning, they turn out to be . . . judges. Sometimes, they end up on the side with which you agree. Sometimes not. You know, like judges.
The newest Supreme Court justice, Amy Coney Barrett, is the latest in the trio of
presumptively conclusively evil judges, and by definition will use their vote on the Nine to destroy the good law. This certainty gives rise to pre-emptive warnings about how a case may come before the Court because she is now the “deciding vote.” Adam Liptak explains that in one of the most controversial of all constitutional evils, allowing people with prior felony convictions to enjoy fundamental constitutional rights as if they were just like any other citizen.
On Wednesday, [Justice Barrett’s] vote flipped the court’s approach to restrictions on attendance at religious services during the coronavirus pandemic. While Justice Ruth Bader Ginsburg was alive, the court had allowed such limits, in California and Nevada, by 5 to 4 votes. After Justice Barrett succeeded her, she joined the court’s four most conservative justices to strike down restrictions in New York.
Or, to frame it differently, Justice Barrett placed a higher value on the Free Exercise Clause of the First Amendment than pandemic restrictions on freedom that applied inconsistently to some activities, like protesting or restaurants, than religious services.
Those same four justices are now on high alert for a promising case in which to expand Second Amendment rights, having written repeatedly and emphatically about the court’s failure to take gun rights seriously. Justice Barrett seems poised to supply the fifth vote they need.
A Second Amendment case decided last week by the federal appeals court in Philadelphia is a promising candidate for Supreme Court review, not least because it presents an issue on which Justice Barrett has already taken a stand.
Since the Supreme Court decided Heller and McDonald, it’s been reluctant to take on Second Amendment cases where circuit courts have largely ignored the law and tested the Supreme Court’s will to do something about it. The Supreme Court blinked. If the Second Amendment, as opposed to say the Fourth or Fifth, isn’t your favorite amendment, then lower courts thumbing their noses at constitutional rights probably didn’t outrage you.
But then, if constitutional rights can be ignored with impunity by courts who just aren’t that into them, it presents a problem. After all, either courts respect constitutional rights or they don’t. Or is it dependent on how popular the particular right is?
It concerns Lisa M. Folajtar, who would like to buy a gun. But she is a felon, having pleaded guilty to tax evasion, which means under federal law she may not possess firearms.
She sued, arguing that the law violated her Second Amendment rights. A divided three-judge panel of appeals court rejected her challenge, saying that committing a serious crime has consequences. It can lead to losing the right to vote, to serve on a jury — or to have a gun.
Is this really just a “guns rights” case, or is there another core issue at stake here, one that should tug at the heartstrings of the same folx who passionately hate guns?
In dissent, Judge Stephanos Bibas, a former law professor appointed to the court by President Trump (and the author of a scathing decision on Friday rejecting the president’s challenge to the election results in Pennsylvania), wrote that the framers of the Constitution would not have allowed lawmakers to bar felons convicted of nonviolent crimes from owning guns.
In yet another inexplicable irony, the same Judge Bibas who was appointed to the Third Circuit by Darth Cheeto to do his bidding ended up not merely ruling against Trump, and in favor of entirely sound and rational law, but stood up in this case for the right of — wait for it — felons. These are the same people whose right to vote was the subject of passionate voices, and the same issue, whether a person who has “paid their debt to society” should be entitled to rejoin society as a full member, constitutional rights and all.
Judge Bibas’ dissent drew from another dissent, that one written by a Seventh Circuit judge named Barrett.
“History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons,” she wrote. “But it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous.”
Is this an “expansion” of Second Amendment rights or an expansion of rights of people convicted of prior felonies where their conviction has no rational connection to any underlying justification for their loss of constitutional rights in perpetuity? Can it be that she consistently believed that former felons should be entitled to the right to vote, to sit on juries, to hold licenses and public office, but yet be denied the right to own a gun if there is nothing in their past to suggest they present a danger to anyone? Nothing, of course, other than the conviction of a felony, conduct arguably committed by pretty much everyone three times a day, even if we neither know it nor mean it.
Is Justice Barrett, like Judge Bibas, an evil Trump judge bent on destroying the law or a good and decent judge bent on upholding constitutional rights, even for the disfavored? The answer might be neither or both, as we can’t seem to shake off that tendency to judge judges by whether their opinions conform to the outcomes we prefer, even if their rationales are sound.
But to suggest that every judge is just another Sam Alito in the making might not only do enormous damage to the institution of the judicial branch of government, but be completely wrong. Is it possible that Justice Barrett will turn out to be a great supporter of constitutional rights? Hey, you never know. Maybe it would be wise to wait and see rather than condemn first.