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Is Justice Kavanaugh Grievously Wrong on Stare Decisis?

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Image: Billion Photos/Shutterstock.com
Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.

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Which Justices Are Originalists?

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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.

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Confirmation Wars and Constitutional Authority, Part I

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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.

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How Kavanaugh Should Respond to Senators’ Questions, Part I

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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.

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The Rise of Formalism and the Decline of Chevron

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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.

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Why the Supreme Court Is Activating the Passive Virtues

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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.

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Gorsuch Tries (Unsucessfully) To Restore the Contract Clause

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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.

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

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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.

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What Do Judges Maximize?

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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.

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Political Versus Principled Judging

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Linda MacPherson/Shutterstock.com
Attitudes may matter more than originalists would like to admit, but we shouldn't discount the possibility of principled judging.

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