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01/28/2017

More on Scalia-ness from Jonathan Adler
Michael Ramsey

At Volokh Conspiracy, Jonathan Adler: How Scalia-esque will Donald Trump’s Supreme Court nominee be? (with further thoughts on the update to the "Scalia-ness" study noted here by Andrew Hyman).  Professor Adler comments:

The Scalia-ness study is interesting, but it is also limited. Does a judge cite Scalia’s non-judicial writings because they have a particular affinity for Scalia’s way of thinking? Or because they are more prone to citing non-judicial writings generally? Do they write more often separately because they are particularly independent and principled? Or because of their relationships with their colleagues or willingness to write about extraneous issues in cases?

In addition, as I’ve discussed before, a judge’s record on an intermediate court is not always predictive of how that judge would perform on the Supreme Court. Lower court judges have an obligation to follow circuit and Supreme Court precedent and may feel constrained when it comes to addressing broader or more foundational questions in specific cases. Judges on lower courts are also less likely to be asked by litigants to reconsider precedents or pave new ground, so they have less occasion to even ask some of the larger questions.

Also:

On the subject of thinking about how potential Supreme Court nominees think, two of the three leading candidates mentioned above — Gorsuch and Pryor — recently delivered the Sumner Canary lecture at the Case Western Reserve University School of Law, and each published an article based upon their lecture in the Case Western Reserve Law Review. These lectures provide valuable insights about the law and the thoughts of these two jurists. Here are links to the video and printed version of each lecture.

  • Neil Gorsuch, “Of Lions and Bears, Judges and Legislators, and the Legacy of
    Justice Scalia” (video) (published version)
  • William Pryor “The Separation of Powers and the Federal and State Executive Duty to Review the Law ” (video) (published version)