Judges Commons^™

I Call Rigamarole (Or Taradiddle) On 'Originalist' Justices, Rachel A. Van Cleave

Publications

Last week, while Supreme Court nominee Amy Coney Barrett was holding forth about how she applies originalism, invoking her mentor and former boss Justice Antonin Scalia, current Supreme Court justices were undermining an originalist opinion authored by Scalia. Nominee Barrett explained originalism: “I understand [the Constitution] to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.”

Oral arguments in Torres v. Madrid make clear that, for some justices, originalism is appropriate, except when …

Circuit Splits And Empiricism In The Supreme Court, Karen M. Gebbia

Publications

This Article demonstrates, empirically rather than merely in theory, how a failure to apply accurate data to test carefully constructed hypotheses leads to unreliable conclusions concerning the relationship between the Supreme Court and the circuit courts of appeal. Specifically, commentators routinely misapply facially accurate raw data regarding the rate at which the Court reverses circuit court decisions to support unreliable conclusions regarding the comparative degree of accord between the Court and individual circuits. Commentators and the popular press then employ these unreliable conclusions to draw unsupported inferences regarding the reasons for supposed discord between the Court and the circuits, and …