The named conspirators, along with myself, were Judge Douglas Ginsburg, Professor Richard Epstein, and Chip Mellor (Institute for Justice). Jeff’s current indictment no longer names them; this confirms my long-held suspicion that they are traitors.
Their defection looks like a set-back, as does the fact that since 2005, the post-New Deal regulatory state has exploded (along with federal spending and debts). The voters elected a president who made good on his promise to pursue that agenda and who, moreover, has appointed judges and justices who seem disinclined to stop, let alone “dismantle,” anything at all. The doctrines that might do so have remained dormant. All this, though, merely reflects my strategic judgment that my time had not yet come; I had to lull the country into complacency.
Jeff Rosen has also found out and now named my recently acquired co-conspirators. Randy Barnett, for example. Rosen’s indictment contravenes the Yale conference’s consensus, reported here, that Randy Barnett does not actually exist but was invented by the New York Times. I can and should clear this up: besides the Times’s made-up Georgetown Law Barnett, there is the real Exile Barnett, who sells mortgage insurance in Dale City, VA and resents Obamacare’s discriminatory mandate for health but not housing (Motto: “Everyone needs a mortgage some day.”).
The other named conspirators are judges Janice Rogers Brown, David Sentelle, and Thomas Griffith, all of the D.C. Circuit. In an April 13 decision, a panel consisting of those judges unanimously, and easily, upheld a New Deal-era scheme that raises the price of milk for consumers.
Rosen, we get it. Barnett, et al, do not agree with the state of modern con law and seek to revert to a period of law you do not like. Many liberals do not like our current state of con law, and wold want to rever to the heyday of the Warren Court. I get it. But this notion of a vast-libertarian conspiracy is silly.
Update: Tim Sandefur has more about Rosen’s “conspiracy”:
I say his conspiracy because in Rosen’s eyes, the widening circle of lawyers, judges, and law professors who are drawing attention to the many shortcomings of the dominant Progressivist school of constitutional law can’t just be a group of people who think the courts have got certain things wrong—no, they’re a cabal of “conservative judges,” secretly plotting to take over the world and undermine Social Security…or something like that. After all, nowhere in Rosen’s article does he even try to address what people like Judge Brown or Professor Barnett believe, or why. Instead, it’s all portrayed as a camouflaged political power play, without any intrinsic merit at all.