Monday, March 27, 2017

Originalism Here, There, Everywhere and Nowhere

By Eric Segall

There was a time when a handful of legal scholars advocated for an originalist methodology that, if applied honestly, would significantly constrain judicial discretion even in hard constitutional cases. Professors Raul Berger and Lina Graglia, among others, argued that 1) the original meaning of the Constitution does not change; 2) that judges are bound by that meaning; and, most crucially, 3) judges should not invalidate decisions by other political actors unless those decisions are clearly and obviously inconsistent with that original meaning. If the original meaning of the text and history in question were subject to reasonable disagreement, then judges had to defer to other governmental officials.

Separation of Powers Better Justifies SCOTUS Nominee Reticence Than Judicial Impartiality Does

by Michael Dorf

Last week, I joined the chorus of academics decrying the futility of most of the questioning of Judge Gorsuch and other recent SCOTUS nominees. In a column, I agreed with Joe Biden's characterization of confirmation hearings as a "kabuki dance," even as I suggested that the hearings have some incidental educational value for the public. Then, in a blog post, I argued that Judge Gorsuch had introduced a new way for nominees to evade senators' questions: By characterizing just about every question as seeking his "personal"--and thus ostensibly irrelevant--opinion.

Judge Gorsuch also relied on the tried and true method of declining to answer questions about past cases on the ground that doing so would require him to pre-judge issues that could come or return to the Supreme Court, and thus compromise his impartiality. As numerous commentators have previously observed, this particular piece of conventional wisdom is highly dubious. If commenting, even tentatively, on whether he thought, say, Citizens United v. FEC or Obergefell v. Hodges, were rightly decided as an original matter would compromise Judge Gorsuch's impartiality in a future case seeking to construe their scope or overrule them, then, a fortiori, Justice Kennedy's impartiality is compromised in such future cases because he authored the majority opinions in both Citizens United and Obergefell. Yet no serious person thinks that Justice Kennedy (or the other justices who ruled on those cases) should be recused from any such future cases.

Accordingly, principles of judicial ethics do not justify the I-can't-comment-on-specifics-because-the-issue-might-come-before-the-Court excuse. In the balance of this essay, I want to suggest that there might be a somewhat better justification for that excuse: separation of powers.

Friday, March 24, 2017

Powerful People Prefer 'Personal' Relationships With Powerless People

by Neil H. Buchanan

The personal relationship that I have with my automobile insurance company is a cornerstone of my happiness.  Also, my sense of empowerment when I interact with my cable company makes me feel pleased that no one is coming between us.   I view it as essential to my life that those deep connections never be disturbed.

No, I have not lost my mind.  Instead, I am simply trying to force myself to think in the way that Republicans want me to think about the inherently unbalanced relationships that people with relatively little power have with the powerful.  Republicans ultimately rely on that deliberately naive view of "relationships" between individuals and powerful institutions to justify their anti-government crusades.

Thursday, March 23, 2017

Judge Gorsuch Makes It "Personal"

by Michael Dorf

My latest Verdict column went live yesterday morning, after a very full day of questioning of Judge Gorsuch by members of the Senate Judiciary Committee. The column makes a number of points about the way in which the Gorsuch confirmation hearing resembles other recent confirmation hearings--which I'll quickly summarize before turning to one way in which Gorsuch's answers strike me as novel.

Wednesday, March 22, 2017

Judge Gorsuch and the Role of Public Interest Litigation in our Democracy

by Alan K. Chen

In 2005, shortly before he was appointed to the federal bench, Supreme Court nominee Neil Gorsuch wrote a commentary for the National Review criticizing liberals’ reliance on litigation to accomplish social reform. This was not a surprising position for one of Federalist Society’s rising stars to take. Conservatives have long frowned upon public interest lawsuits as a means of pursuing social change.

Tuesday, March 21, 2017

Trump's Inescapable Carnival Act: Live By It, Die By It?

by Neil H. Buchanan

Has Donald Trump figured out how to beat the press?  There is understandable concern that his Twitter addiction has superseded the normal channels of political communication, and that he has in general put himself outside the rules of the old game.  If so, we have an even more serious problem than we thought.

Monday, March 20, 2017

Will Neil Gorsuch Be the Court’s First Originalist?

by David S. Cohen & Eric Segall

When Donald Trump nominated Judge Neil Gorsuch to the Supreme Court, he praised him as someone who will interpret the Constitution “as written.” Commentators from both sides of the aisle have described him as an “originalist” who will, in Gorsuch’s own words, rely on “text, structure, and history” to interpret the Constitution rather than his “own moral convictions.”