Law Commons^™

Justices Citing Justices, Jay D. Wexler

Faculty Scholarship

Scholars have long paid attention to how often and for what reasons Supreme Court justices cite law review articles and academic books in their opinions. More recently, a new area of scholarship has begun to look at how Justices create their own lines of “personal precedent” through not only their prior opinions but also their academic writings. At the intersection of these two areas of inquiry lies questions of how often and for what reasons Supreme Court justices cite the journal articles and books of the various justices sitting on the Court, including their own. With the exception of one …

The Major Questions Doctrine: Right Diagnosis, Wrong Remedy, Thomas W. Merrill

Faculty Scholarship

The Supreme Court’s “major questions” doctrine has been attacked as an attempt to revive the nondelegation doctrine. The better view is that this statutory interpretation responds to perceived failings of the Chevron doctrine, which has governed court-agency relations since 1984. This article criticizes the major question doctrine and proposes modifications to the Chevron doctrine that would partially correct its failings while preserving the traditional interpretive role of courts.

We Clerked For Justices Scalia And Stevens. America Is Getting Heller Wrong., Katherine A. Shaw, John Bash

Faculty Online Publications

In the summer of 2008, the Supreme Court decided District of Columbia v. Heller, in which the court held for the first time that the Second Amendment protected an individual right to gun ownership. We were law clerks to Justice Antonin Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the lead dissent.

Symposium: The Puzzling And Troubling Grant In Kisor, Gillian E. Metzger

Faculty Scholarship

From one perspective, the Supreme Court’s decision to grant review in Kisor v. Wilkie is not surprising. Dating back at least to Justice Antonin Scalia’s 2011 concurrence in Talk America v. Michigan Bell Telephone Co., through Decker v. Northwest Environmental Defense Center in 2013 and Perez v. Mortgage Bankers Association in 2015, there’s been growing interest on the Supreme Court’s conservative wing in overturning Auer deference, or the doctrine that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” The campaign to overturn Auer v. Robbins then stalled, with the court denying …

Digital Realty, Legislative History, And Textualism After Scalia, Michael Francus

Pepperdine Law Review

There is a shift afoot in textualism. The New Textualism of Justice Scalia is evolving in response to a new wave of criticism. That criticism presses on the tension between Justice Scalia’s commitment to faithful agency (effecting the legislature’s will) and his rejection of legislative history in the name of ordinary meaning (which ignores legislative will). And it has caused some textualists to shift away from faithful agency, even to the point of abandoning it as textualism’s grounding principle. But this shift has gone unnoticed. It has yet to be identified or described, let alone defended, even as academic and …

Correspondence With Fellow Associate Justices Of The Supreme Court Of The United States, Lewis F. Powell, Jr.

Powell Correspondence

No abstract provided.

The Faces Of The Second Amendment Outside The Home, Take Three: Critiquing The Circuit Courts Use Of History-In-Law, Patrick J. Charles

Cleveland State Law Review

This article seeks to critique the circuit courts’ varying history-in-law approaches, as well as to provide advice on the proper role that history-in-law plays when examining the scope of the Second Amendment outside the home. This article sets forth to accomplish this task in three parts. Part I argues why history-in-law is appropriate when adjudicating Second Amendment decisions outside the home. Part II examines the benefits and burdens of utilizing history-in-law as a method of constitutional interpretation, while breaking down the alternative approaches employed by circuit courts when adjudicating Second Amendment decisions outside the home. Lastly, Part III offers practical …

Keynote Address: Judging The Political And Political Judging: Justice Scalia As Case Study, Richard L. Hasen

Chicago-Kent Law Review

This is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law. In this Address, Professor Hasen considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance on the one hand to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on the other. …

Survey Says: Army Corps No Scalian Despot, Kim Diana Connolly

Kim Diana Connolly

Justice Antonin Scalia and others have described the U.S. Army Corps of Engineers ('the Corps') administration of the permitting process as burdensome and inefficient. Empirical data gathered from the Corps, however, do not bear out this assessment. In this Article, Kim Diana Connolly evaluates data collected from Corps Customer Service Surveys as well as the apparent disconnect between applicant experiences and the public's negative perception of the permitting process. She begins the Article with an overview of the Corps' regulatory permitting process, then lays out the history of and context for the Corps' Customer Service Surveys. Next, she summarizes available …

Disrespectful Dissent: Justice Scalia's Regrettable Legacy Of Incivility, J. Lyn Entrikin

The Journal of Appellate Practice and Process

No abstract provided.

Justice Scalia And Abortion Speech, Timothy Zick

Faculty Publications

No abstract provided.

The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis, P. Thomas Distanislao, Iii

Law Student Publications

The scene is the main reading room in the Supreme Court library. It is 12:01 AM on a Thursday night, and a hapless law clerk' named Madison Nomos' is working on a draft of a dissenting opinion for his Justice. Specifically, Nomos is researching whether an earlier Supreme Court case- one with which his Justice vehemently disagrees- should play a significant role in the Court's analysis of an issue that has gripped the nation. Nomos's Justice was recently confirmed, and this will be her first opportunity to firmly state her views on stare decisis in the Supreme Court. She has …

Commentary: Justice Who Follows Scalia's Path Would Hurt The Working Class, Bruce A. Larson

Political Science Faculty Publications

During the campaign, Donald Trump released a list of 21 conservatives from which he promised to pick Supreme Court justices, should he win the election. With President-elect Trump apparently nearing a decision on a nominee to replace the late Justice Scalia, Senate Republicans are no doubt eagerly awaiting the chance to confirm Trump's pick and restore a conservative majority on the court. [excerpt]

Justice Scalia’S Bottom-Up Approach To Shaping The Law, Meghan J. Ryan

William & Mary Bill of Rights Journal

Justice Antonin Scalia is among the most famous Supreme Court Justices in history. He is known for his originalism and conservative positions, as well as his witty and acerbic legal opinions. One of the reasons Justice Scalia’s opinions are so memorable is his effective use of rhetorical devices, which convey colorful images and understandable ideas. One might expect that such powerful opinions would be effective in shaping the law, but Justice Scalia’s judicial philosophy was often too conservative to persuade a majority of his fellow Justices on the Supreme Court. Further, his regular criticisms of his Supreme Court colleagues were …

Replacing Scalia, Donald Roth

Faculty Work Comprehensive List

"Scalia was an advocate of 'principled pluralism,' the idea that we should have a society where we not only share a common cause, but we freely and vigorously express and defend our differing views."

Posting about the appointment of a new Supreme Court Justice­­­­­­­­ from In All Things - an online hub committed to the claim that the life, death, and resurrection of Jesus Christ has implications for the entire world.

http://inallthings.org/replacing-scalia/

Bookends: Justice Stevens And Justice Scalia, Gregory P. Magarian

Scholarship@WashULaw

The great importance Justice John Paul Stevens attaches to his bonds with former colleagues has long shone through his words and actions. Anyone who knows Justice Stevens knows of his deep admiration for his former boss, Justice Wiley Rutledge, whose deep ties to Washington University Justice Stevens emphasized in his recent remarks here.' During the year I had the privilege of serving as one of Justice Stevens' law clerks, retired Chief Justice Warren Burger passed away. A few days after Chief Justice Burger's death, Justice Stevens announced a decision from the bench. He revised his explanation of the majority's reasoning …

The Counter-Clerks Of Justice Scalia, Ian Samuel

Articles by Maurer Faculty

“So, what are you going to do when you’re done here?”

That’s what he asked me first. I had just sat down in his chambers, on a big, overstuffed leather couch. It was a day in early April, and I’d spent my last few minutes sitting across the street in a park, shuffling through the index cards I’d been using for weeks to prepare. The cards were organized by topic, each with a few bullet points to remind me of what the man across from me thought about every subject on which he’d had an opinion over the last quarter-century. …

The Age Of Scalia, Jamal Greene

Faculty Scholarship

During periods of apparent social dissolution the traditionalists, the true believers, the defenders of the status quo, turn to the past with an interest quite as obsessive as that of the radicals, the reformers, and the revolutionaries. What the true believers look for, and find, is proof that, once upon a time, things were as we should like them to be: the laws of economics worked; the streams of legal doctrine ran sweet and pure; order, tranquility, and harmony governed our society. Their message is: turn back and all will be well.

Survey Says: Army Corps No Scalian Despot, Kim Diana Connolly

Journal Articles

Justice Antonin Scalia and others have described the U.S. Army Corps of Engineers ('the Corps') administration of the permitting process as burdensome and inefficient. Empirical data gathered from the Corps, however, do not bear out this assessment. In this Article, Kim Diana Connolly evaluates data collected from Corps Customer Service Surveys as well as the apparent disconnect between applicant experiences and the public's negative perception of the permitting process. She begins the Article with an overview of the Corps' regulatory permitting process, then lays out the history of and context for the Corps' Customer Service Surveys. Next, she summarizes available …

Tribute To Justice Antonin Scalia, Nadine Strossen

Articles & Chapters

No abstract provided.

A Constitutional Defense Of Legislative History, Paul E. Mcgreal

William & Mary Bill of Rights Journal

No abstract provided.

Justice Scalia's Rhetoric Of Dissent: A Greco-Roman Analysis Of Scalia's Advocacy In The Vmi Case, Michael Frost

Kentucky Law Journal

No abstract provided.

Legislative History And Statutory Interpretation: The Supreme Court And The Tenth Circuit, Fritz Snyder

Oklahoma Law Review

No abstract provided.

Justice Antonin Scalia And Criminal Justice Cases, Christopher E. Smith

Kentucky Law Journal

No abstract provided.

A Social-Conservative Comment On The New Supreme Court, Gary L. Bauer

University of Richmond Law Review

I recall seeing a column, not long ago, which referred to the Supreme Court as increasingly "a right-wing playground." Liberal groups may be able to raise funds off this impression, but if conservatives rely on it, they are in for a rude awakening when the gavel falls.