Thread by @JoshMBlackman

1/ J. Thomas and Gorsuch, but not Alito, argue that Garza "moves the Court another step further from the original meaning of the Sixth Amendment." They concluded that there is no "guarantee of government-funded counsel" and no right to challenge ineffective assistance. #SCOTUS

2/ Thomas and Gorsuch stop short of calling for Gideon and Strickland to be overruled. Rather, they only say #SCOTUS should "proceed with far more caution" and "hesitate before further extending" those precedents. Like with libel, the states and feds to make policy determinations

3/ This approach reminds me of @RandyEBarnett model: "This far, but no farther," unless the extension of precedent can be justified by originalism. That is, #SCOTUS won't overrule old non-originalist precedents. Rather, the Justices will simply decline to extend them.

4/ To use a very current example, @HawleyMO explained that he is not asking circuit court judges whether they would overrule old SDP precedents. They can't. Rather, he is asking whether they would extend those non-originalist precedents. thefederalist.com/2019/02/27/won…

5/ Hawley's framework sounds in Washington v. Glucksberg. CJ Rehnquist's majority opinion limited the expansion of SDP to rights that are "deeply rooted in this Nation’s history and tradition."

6/ This test, which @ishapiro and I endorse, prevents expansion of SDP, and even Priv or Immunities, to modern, and post-modern rights. But it still allows for the preservation of old rights, which have fallen out of favor in contemporary society. papers.ssrn.com/sol3/papers.cf…

7/ The Thomas/Gorsuch model--this far, but no farther--works just as well for #SCOTUS justices, as it would for circuit judges. Lower court judges cannot disregard #SCOTUS constitutional precedents.

8/ But judges need not expand an un-originalist precedent to new circumstances unless the original meaning of the Constitution supports that extension. I've long considered stare decisis in originalism in the lower courts. I plan to write on this in the future.

9/ In any event, once again J. Thomas manages to shape the agenda. Last week I joked on NPR that Justice Thomas programmed their segment: they were discussing whether #SCOTUS should overrule NYT v. Sullivan. Next segment: should #SCOTUS overrule Gideon and Strickland?

10/ @joldmcginn on Garza: The Thomas "approach here would not require that precedent necessarily be overruled when it conflicts with original meaning. Instead, original meaning would prevent precedents from being extended further in the wrong direction." lawliberty.org/2019/03/01/how…