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Thursday, July 01, 2021

Erroneous political statement of the day

I have seen a version from multiple sources: Thursday's decisions in AFP and Brnovich are a direct result of Mitch McConnell's ploy with Merrick Garland, that but for that, the Court would have a 5-4 liberal majority rather than a 6-3 conservative majority.

This is wrong because Donald Trump still would have filled two seats (Kennedy and Ginsburg). Had Garland been confirmed, there would have been a 5-4 liberal majority until October 2020, when the majority flipped when Barrett replaced Ginsburg. So some cases during the Trump years probably come out differently--the travel ban, for example. The Court might have done more to stop the worst of Trump's abuses in starker terms. But not Thursday's cases or any of the 6-3 cases of this Term--they are closer (5-4 rather than 6-3), but the outcomes do not change.

The other question in this counter-factual is who the Trump appointees would have been: Gorsuch and Kavanaugh, Gorusch and Barrett, Kavanaugh and Barrett?

Posted by Howard Wasserman on July 1, 2021 at 11:36 PM in Howard Wasserman, Law and Politics | Permalink

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