Law Commons^™

The Faithful Justice, Kevin C. Walsh

Scholarly Articles

On Faith: Lessons from an American Believer is more than a collection of Justice Antonin Scalia’s speeches on religion and American public life. Edited by son Christopher Scalia and former law clerk and long-time confidant Edward Whelan, this eleven-speech collection also includes nine personal reflections from friends and family, four extended excerpts from judicial opinions by Scalia, two prayers (one by St. Thomas More and another by St. Ignatius of Loyola), a funeral mass homily (by son Fr. Paul Scalia), and a letter by Justice Scalia to a Presbyterian minister about the funeral ceremony for Justice Lewis Powell.

Kennedy’S Last Term: A Report On The 2017–2018 Supreme Court, Kevin C. Walsh, Marc O. Degirolami

Scholarly Articles

Twenty-eighteen brought the end of Justice Anthony Kennedy’s tenure on the Supreme Court. We are now entering a period of uncertainty about American constitutional law. Will we remain on the trajectory of the last half-century? Or will the Court move in a different direction?

The character of the Supreme Court in closely divided cases is often a function of the median justice. The new median justice will be Chief Justice John Roberts if Kennedy’s replacement is a conservative likely to vote most often with Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito. This will mark a new phase of the …

Without Evidence: Joel Richard Paul’S John Marshall, Kevin C. Walsh

Scholarly Articles

John Marshall—soldier, lawyer, legislator, statesman, and fourth chief justice of the United States—led a long public life that spanned from the American Revolution to the rise of Jacksonian democracy. Joel Richard Paul’s full-length biography takes the reader from Marshall’s birth on the Virginia frontier in 1755, to his death in 1835 at the head of an American judiciary that had gained significantly in power and respect because of Marshall’s leadership over the preceding 34 years.

Originalist Law Reform, Judicial Departmentalism, And Justice Scalia, Kevin C. Walsh

Scholarly Articles

Drawing on examples from Justice Antonin Scalia's jurisprudence, this Essay uses the perspective of judicial departmentalism to examine the nature and limits of two partially successful originalist law reforms in recent years. It then shifts to an examination of how a faulty conception of judicial supremacy drove a few nonoriginalist changes in the law that Scalia properly dissented from. Despite the mistaken judicial supremacy motivating these decisions, a closer look reveals them to be backhanded tributes to judicial departmentalism because of the way that the Court had to change jurisdictional and remedial doctrines to accomplish its substantive-law alterations. The Essay …

The Court After Scalia, Kevin C. Walsh

Scholarly Articles

In this editorial, Professor Walsh surveys the 2015-2016 U.S. Supreme Court term, with particular attention to the effects the late Justice Antonin Scalia's absence had on the Court's decisions.

Glimpses Of Marshall In The Military, Kevin C. Walsh

Scholarly Articles

Before President John Adams appointed him as Chief Justice of the United States in 1801, John Marshall was a soldier, a state legislator, a federal legislator, an envoy to France, and the Secretary of State. He also maintained a thriving practice in Virginia and federal courts, occasionally teaming up with political rival and personal friend Patrick Henry. Forty-five years old at the time of his appointment to the Supreme Court, Marshall has been serving his state and his country for a quarter century before he took judicial office. Marshall is an exemplar of professional excellence for all lawyers and judges. …

Addressing Three Problems In Commentary On Catholics At The Supreme Court By Reference To Three Decades Of Catholic Bishops' Amicus Briefs, Kevin C. Walsh

Scholarly Articles

Much commentary about Catholic Justices serving on the Supreme Court suffers from three related shortcomings: (1) episodic, one-case-at-a-time commentary; (2) asymmetric causal attributions resulting from inattention to cases in which Catholic Justices vote for outcomes opposite those advocated by the Catholic Bishops' Conference; and (3) inattention to broader jurisprudential and ideological factors. This article uses an overlooked resource to identify and counteract these shortcomings. It assesses the votes of the Justices-Catholic and non-Catholic alike-in the full set of cases from the Rehnquist Court and the Roberts Court (through June 2014) in which the United States Conference of Catholic Bishops filed …

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory,, Kevin C. Walsh, Marc O. Degirolami

Scholarly Articles

Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …

Gingrich, Desegregation, And Judicial Supremacy, Joel Alicea

Scholarly Articles

Those who oppose judicial supremacy follow in the footsteps of Abraham Lincoln himself.

Differentiating The Federal Circuit, Elizabeth I. Winston

Scholarly Articles

In 1982, Congress created the United States Court of Appeals for the Federal Circuit. Often referred to as an experiment, the Federal Circuit has flourished. Born again from the ashes of its predecessors, the aptly nicknamed Phoenix Court continues to grow in significance, stature, and strength. As it grows, however, the court remains rooted in its history and in its unique nature. This Article explores the Federal Circuit’s structure and its impact on the development of Federal Circuit jurisprudence. The Federal Circuit is distinguishable by more than its national jurisdiction – the very essence of the court sets it apart …

Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

Scholarly Articles

This article explores the use of threats of removal against federal judges and why their incidence is likely to increase. In Part I, after presenting the textual sources authorizing judicial removal, I survey briefly the history and quality of certain judicial impeachments and threatened removals. In Part II, I examine two recent pieces of legislation, the Feeney Amendment and House of Representatives Resolution 568 (which has not yet been enacted), that serve as able vehicles for legislators to threaten judges with removal for noncompliance with certain political ideologies or objectives. In Part III, I ask what may explain the increased …

John Noonan On Marriage And The Family: Continuity And Change In Doctrine, William J. Wagner

Scholarly Articles

In support of its critique, this article first analyzes Judge Noonan's general methodological vantage and shows how he proceeds, within that vantage, to formulate general moral norms. Next, it compares Judge Noonan's work with trends in the reasoning of the United States Supreme Court between 1965 and the present to suggest that some of Noonan's assumptions about the longer-term consequences of his own methodology for stability and continuity in moral theology may be unwarranted. Finally, it argues that Noonan is not justified in assuming that adjudicative reasoning, without more, suffices for the formulation of general moral norms, or that transcendent …

Judicial Decision-Making In The Age Of Biotechnology, George P. Smith Ii

Scholarly Articles

The major premise, minor premise, and conclusion of this Article are one and the same - for, they conduce to an acceptance of the fact that the social constructs and legal tools necessary for the modern judiciary to meet head-on and deal with the contentious issues of bioethics and biotechnology are already in place. To resolve problems arising from these potential quagmires, perhaps the major concern is for the courts to remain forever vigilant to the interlinking relationships or synergistic forces found in law, science, ethics, and medicine. Without vigilance and enhanced awareness of the dynamic and fluid situation here, …

Catholic Judges In Capital Cases, John H. Garvey

Scholarly Articles

No abstract provided.

Judicial Discipline And Impeachment, John H. Garvey

Scholarly Articles

This symposium deals with the discipline and removal of Article III judges. In employing these measures we must heed two principles that are in tension with one another. The first is that judges must be honest. The second is that they must be independent. This second principle actually presupposes a third, about which I will say something before returning to the first two. The independence of federal judges is particularly important because they engage in the practice of judicial review

The Supreme Court In American Popular Culture, Maxwell Bloomfield

Scholarly Articles

Until quite recently the judiciary—and the federal judiciary in particular—has been largely neglected by American novelists and playwrights. Literary historians such as Joseph Blotner and Gordon Milne, who have studied the American political novel in the nineteenth and twentieth centuries, have found an abundance of works dealing with legislative or executive skullduggery, but only a handful of titles that examine issues of judicial power. Such relative disinterest in our noblesse de robe seems easily explainable. Judges have always been less visible to the public than, say, Congressmen or Governors, and the business of judging does not lend itself readily to …

Epieikeia: Equitable Lawmaking In The Construction Of Statutes, Raymond B. Marcin

Scholarly Articles

No abstract provided.

Jurimetrics, No!, Ralph J. Rohner

Scholarly Articles

As the twentieth century ends, we hear recounted the story of the law revolution that began in the 1960's and reached its fulfillment with the constitutional amendment that replaced the Supreme Court with nine outstanding JUDIVACs, who formed the High-Voltage Bench. Little-known details of these momentous events are explained.