John Yoo, a Berkeley Law Professor and noted conservative legal scholar has a lot to say about what’s coming up on the judicial docket for Justice Amy Coney Barrett.

On the overall constitutional effect of the Trump presidency, he said, “As I argue in my book ‘Defender-in-Chief,’ Trump not only raised the Constitution as a shield against assaults on the legitimacy of his presidency. In both cases, he also defended the Founders’ vision of the executive branch – one that vests the power to enforce the law and protect the national security in the hands of a single, elected president – against the progressive idea of government as the preserve of unelected experts who should wield their professional judgment free from political control.”

On constitutional and election law that may come up very soon before the court, “Election cases may seem more imperative. So far, the Supreme Court has placed a light hand on the shenanigans in the battleground states. It has passed twice on reviewing the Pennsylvania Supreme Court’s use of the coronavirus emergency to arbitrarily change the date by which mail-in ballots must arrive and how officials are to verify them. While the Court has passively sat by due to Chief Justice John Roberts’ choice to vote with the three liberal Justices (Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan) to block review, it cannot avoid the important constitutional question for long. Article I of the Constitution specifically vests in the state legislatures the right to set the ‘Times, Places and Manner of holding Elections’ and Article II gives the state legislatures alone the right to decide how to appoint presidential electors. With Justice Barrett breaking the 4-4 tie, the Court can address whether the interference of judges in Pennsylvania and her sister states, even under the guise of an emergency, violates the state legislatures’ control over the presidential election.”

What Happens if No One Wins? The Constitution provides for election crises—and its provisions favor @realDonaldTrump. John Yoo and Robert Delahunty explain: https://t.co/LUMXEURy7k

— The American Mind (@theammind) October 20, 2020

And Barrett’s greatest possible influence on the high court, “Justice Barrett could provide a fifth or even sixth vote on the Court to recognizing that the Bill of Rights fundamental protections for liberty supersede more recent, popular efforts to mandate equality. If she were to demand that the courts protect the right of speech and religion above all, Barrett would make her most profound contribution to the Supreme Court and the Constitution.”

This piece was written by David Kamioner on October 28, 2020. It originally appeared in DrewBerquist.com and is used by permission.

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