Neil Gorsuch

December 7, 2018|Brett Kavanaugh, Double Jeopardy, Gamble v. United States, Neil Gorsuch, Originalism, Stare Decisis

Is Justice Kavanaugh Grievously Wrong on Stare Decisis?

Image: Billion Photos/Shutterstock.com

Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.

November 9, 2018|Antonin Scalia, Clarence Thomas, Elena Kagan, Free Enterprise Fund, Heller, John Roberts, Neil Gorsuch, NFIB v. Sebellius, Noel Canning, Samuel Alito

Which Justices Are Originalists?

by John O. McGinnis|8 Comments

Chambers of the U.S. Supreme Court (Erik Cox Photography / Shutterstock.com).

The Supreme Court can be divided into three camps, two of which have claims to be originalist.

August 15, 2018|Brett Kavanaugh, Bush Administration, Jim Jeffords, judicial confirmation, Neil Gorsuch, Obama administration, Supreme Court

Confirmation Wars and Constitutional Authority, Part I

by James Wallner|2 Comments

Judge Neil Gorsuch testifies during his confirmation hearing before the Senate Judiciary Committee in Washington, D.C., on March 22, 2017 (Kristoffer Tripplaar / Alamy Stock Photo).

Senators should remember that the purpose of the confirmation process is not to confirm the president's nominee: it is to protect the judiciary.

August 14, 2018|Amy Klobuchar, Brett Kavanaugh, Brown v. Board of Education, Neil Gorsuch, Richard Blumenthal, Richard Durbin, Roe v. Wade

How Kavanaugh Should Respond to Senators’ Questions, Part I

by John O. McGinnis|8 Comments

Brett Kavanaugh delivers remarks after President Donald J. Trump announces his nomination to be Associate Justice of the United States Supreme Court, July 9th, 2018 in Washington, DC. (Credit: Alex Edelman/CNP /MediaPunch/Alamy Stock Photo).

Expect to see these questions and lines of attack at Brett Kavanaugh's confirmation hearing, because senators often use them, regardless of the nominee.

June 22, 2018|ambiguity, Anthony Kennedy, Chevron v. Natural Resources Defense Council, Formalism, Neil Gorsuch

The Rise of Formalism and the Decline of Chevron

by John O. McGinnis|1 Comment

photo credit: Rena Schild (shutterstock.com)

The scope of Chevron seems to be shrinking even if the case is not likely to be actually overruled.

June 19, 2018|Alexander Bickel, Donald Trump, Gerrymandering, Gill v. Whitford, Merrick Garland, Neil Gorsuch, passive virtues

Why the Supreme Court Is Activating the Passive Virtues

by John O. McGinnis|6 Comments

U.S. Supreme Court chambers (stock_photo_world / Shutterstock.com).

In such divided times, we shouldn't be surprised that the Supreme Court embraces passive virtues in order to guard their authority.

June 12, 2018|Contract Clause, Douglas Kmiec, George Sutherland, Home Building and Loan Association v. Blaisdell, Neil Gorsuch, Sveen v. Melin

Gorsuch Tries (Unsucessfully) To Restore the Contract Clause

by John O. McGinnis|12 Comments

Andrei_R/Shutterstock.com

In Sveen v. Malin, Justice Gorsuch argued for a restoration of the Contract Clause: it is unfortunate he could not persuade his colleagues.

May 31, 2018|AT&T Mobility v. Conception, Epic Systems Corp. v. Lewis, Erie Railroad v. Tompkins, Federal Arbitration Act, Lochner, Neil Gorsuch, Ruth Bader Ginsburg

An Epic Case, Its Not-So-Immaculate Concepcion, and a Few Thoughts on Conservative Jurisprudence

by Michael S. Greve|6 Comments

U.S. Supreme Court (Travel Stock/Shutterstock.com).

In Epic Systems Corp. v. Lewis, the Federal Arbitration Act offered the court a second-best workaround to Erie's formless wasteland.

May 17, 2018|attitudinal model, Dimaya v. Sessions, McKinzie Craig Hall, Neil Gorsuch

What Do Judges Maximize?

by James R. Rogers|5 Comments

U.S. Supreme Court (Eric Cox Photography/Shutterstock.com).

We need to move beyond naive attitudinalism and recognize that judges have preferences, but that these don't entirely control judicial decision-making.

May 11, 2018|Alexander Hamilton, attitudinal model, Federalist Papers, Neil Gorsuch, Originalism, Supreme Court