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August 29, 2019|Auer deference, Auer v. Robbins, Chevron deference, Gundy v. United States, John Roberts, Kisor v. Wilkie, nondelegation, Planned Parenthood v. Casey, Stare Decisis

Another Missed Opportunity: Kisor v. Wilkie and the Failure to Overturn Auer Deference

by Mike Rappaport|

The U.S. Supreme Court (Jer123 / Shutterstock.com).
Chief Justice Roberts gets the best of both worlds—the Court narrows Auer, but is not seen as overturning a precedent dear to progressives.

July 25, 2019|Clarence Thomas, Common Law, Gamble v. United States, Precedent, Stare Decisis

Why Justice Thomas Is Wrong about Precedent

by John O. McGinnis|

Former Georgia Gov. Sonny Perdue, left, chats with Justice Clarence Thomas following Purdue’s swearing-in as the 31st U.S. Secretary of Agriculture at the Supreme Court, April 25, 2017. (USDA Photo / Alamy Stock Photo).
The justice's dismissal of common law precedent in the context of written law is a distraction, based on a misreading of history.

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

Is Justice Kavanaugh Grievously Wrong on Stare Decisis?

by John O. McGinnis|

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

June 29, 2018|Citizens United, Janus, John Hart Ely, Morrison v. Olson, Originalism, Roe v. Wade, Stare Decisis

How Janus Weakens Stare Decisis

by John O. McGinnis|

Panorama of the United States Supreme Court at dusk in Washington DC, USA (Joe Ravi/Shutterstock.com).
By rejecting Abood on "quality of reason," Janus v. AFSCME suggests that the Court will follow a weaker version of stare decisis.

December 20, 2016|Bertrand de Jouvenel, Congress, Constitutional Law, Judicial Review, Judicial Supremacy, Mark Tushnet, Randy Barnett, Stare Decisis, The Minotaur

Crouching Congress, Hidden Judges

by Greg Weiner|

One of the signal achievements of Bertrand de Jouvenel was establishing the existential status of power: “The Minotaur,” he called it, a metaphysical entity, nearly organic, with an instinct for both survival and expansion. If Mark Tushnet’s overeager call, predicated on a Hillary Clinton presidency, for judges to emerge from what he alleged to be their “defensive crouch liberal constitutionalism” and slay the foes of Progressivism demonstrated anything, it was that there is, miracle of miracles, such a creature as a judicial Minotaur. Randy Barnett’s much discussed and certainly much warranted reply at The Volokh Conspiracy confirms it. Yet the judicial Minotaur…

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December 15, 2016|Judicial Departmentalism, Judicial Review, Judicial Supremacy, Originalism, Stare Decisis

Do You Believe in the Judicial Supremacy of Dead Justices?

by Kevin Walsh|

Randy Barnett recently had a great line on Twitter (link no longer available) accusing an interlocutor of advocating “the judicial supremacy of dead justices.” The description wasn’t accurate, in my view, and wasn’t a very substantive answer to the question by Adam White that prompted it. But it’s on Twitter, so we can lighten up some. And it’s a great zap-line. Is anyone really in favor of “the judicial supremacy of dead justices”?

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May 2, 2014|

Thomas’s Full Throated Originalism: Ralph Rossum Responds

by Ralph Rossum|

In response to: Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration

U.S. Supreme Court Justice Clarence Thomas

I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there. Antonin Scalia, the Court’s other originalist, is also willing to reject Supreme Court precedents that depart from the constitutional text or the traditional understanding of that text, but, as he once confessed to being a “fainthearted originalist,” he has also confessed to being fainthearted when it comes to overruling…

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More Responses

Sowing the Seeds of an Originalist Future

by Keith Whittington

Not too long ago, I found myself discussing the U.S. Supreme Court with an acquaintance who does not particularly follow politics. During the conversation, I mentioned the name of Justice Clarence Thomas, which provoked the question, “He’s the one who doesn’t do anything, right?” I suppose there are worse ways that Justice Thomas could be remembered,…

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The Jurisprudence of Constitutional Restoration Is Originalism, but Not All Conceptions of Originalism

by Lee J. Strang

Dr. Ralph Rossum’s most recent book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, performs the valuable service of cataloguing and synthesizing the jurisprudential work of one of America’s great living jurists. Rossum’s book joins other sympathetic—though not hagiographic—accounts of Justice Thomas’ work, most importantly Professor Scott Douglas Gerber’s First Principles: The Jurisprudence of Clarence…

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“Just, Wise, and Constitutional”: Justice Thomas’s Legacy in Law and Politics

by Adam White

Ralph Rossum has followed his indispensible volume on Justice Scalia with an equally indispensible analysis of Justice Clarence Thomas’s life and work. The two seem destined to be paired forever. Because they share so much in common, each is the other’s best foil. Professor Rossum draws such contrasts expertly, as have Randy Barnett and Lee Strang,…

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April 10, 2014|

The Jurisprudence of Constitutional Restoration Is Originalism, but Not All Conceptions of Originalism

by Lee J. Strang|

In response to: Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration

U.S. Supreme Court Justice Clarence Thomas

Dr. Ralph Rossum’s most recent book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, performs the valuable service of cataloguing and synthesizing the jurisprudential work of one of America’s great living jurists. Rossum’s book joins other sympathetic—though not hagiographic—accounts of Justice Thomas’ work, most importantly Professor Scott Douglas Gerber’s First Principles: The Jurisprudence of Clarence Thomas. Before turning to the core of my Essay, let me first note Rossum’s unique contributions. Rossum brings up to date the literature on Justice Thomas, and his compilation and synthesis of Justice Thomas’ hundreds of opinions enables the reader to systematically understand and evaluate Justice…

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More Responses

Sowing the Seeds of an Originalist Future

by Keith Whittington

Not too long ago, I found myself discussing the U.S. Supreme Court with an acquaintance who does not particularly follow politics. During the conversation, I mentioned the name of Justice Clarence Thomas, which provoked the question, “He’s the one who doesn’t do anything, right?” I suppose there are worse ways that Justice Thomas could be remembered,…

Read More

“Just, Wise, and Constitutional”: Justice Thomas’s Legacy in Law and Politics

by Adam White

Ralph Rossum has followed his indispensible volume on Justice Scalia with an equally indispensible analysis of Justice Clarence Thomas’s life and work. The two seem destined to be paired forever. Because they share so much in common, each is the other’s best foil. Professor Rossum draws such contrasts expertly, as have Randy Barnett and Lee Strang,…

Read More

Thomas’s Full Throated Originalism: Ralph Rossum Responds

by Ralph Rossum

I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there. Antonin Scalia, the Court’s…

Read More

April 6, 2014|

Sowing the Seeds of an Originalist Future

by Keith Whittington|

In response to: Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration

U.S. Supreme Court Justice Clarence Thomas

Not too long ago, I found myself discussing the U.S. Supreme Court with an acquaintance who does not particularly follow politics. During the conversation, I mentioned the name of Justice Clarence Thomas, which provoked the question, “He’s the one who doesn’t do anything, right?” I suppose there are worse ways that Justice Thomas could be remembered, but the meme that he is a passive presence on the bench is now widespread. This perception is, no doubt, a generalization from the oft-noted fact that Thomas rarely asks questions during oral arguments. Like Calvin Coolidge, whose historical reputation as “Silent Cal” has been…

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More Responses

The Jurisprudence of Constitutional Restoration Is Originalism, but Not All Conceptions of Originalism

by Lee J. Strang

Dr. Ralph Rossum’s most recent book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, performs the valuable service of cataloguing and synthesizing the jurisprudential work of one of America’s great living jurists. Rossum’s book joins other sympathetic—though not hagiographic—accounts of Justice Thomas’ work, most importantly Professor Scott Douglas Gerber’s First Principles: The Jurisprudence of Clarence…

Read More

“Just, Wise, and Constitutional”: Justice Thomas’s Legacy in Law and Politics

by Adam White

Ralph Rossum has followed his indispensible volume on Justice Scalia with an equally indispensible analysis of Justice Clarence Thomas’s life and work. The two seem destined to be paired forever. Because they share so much in common, each is the other’s best foil. Professor Rossum draws such contrasts expertly, as have Randy Barnett and Lee Strang,…

Read More

Thomas’s Full Throated Originalism: Ralph Rossum Responds

by Ralph Rossum

I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there. Antonin Scalia, the Court’s…

Read More

November 15, 2013|Among the Powers of the Earth, Megabanks, Stare Decisis, Stephen Douglas

Friday Roundup, November 15th

by Richard M. Reinsch II|

Did the American Constitution help Americans create the condition of statelessness for others? That's the question taken up by David Hendrickson in our feature review essay this week. Hendrickson's evaluation of Eliga Gould's Among the Powers of the Earth notes that the book is a welcome addition to what the author styles as the internationalist or unionist interpretation of the revolution, of which my own scholarly work forms a part. Gould is at pains to say that nothing in his interpretation is inconsistent with the view which sees the Constitution as a peace pact, but his main emphasis is how it…

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

Read More

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Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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