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10/08/2018

Ilya Somin on the Court and Justice Kavanaugh
Michael Ramsey

Politico has this online symposium on the Supreme Court after Justice Kavanaugh's confirmation.  Mainly it's of little originalist interest, as it is (predictably) mostly liberals gnashing their teeth and (a few) conservatives acting quietly satisfied.  But I like this point from Ilya Somin: 

Can the conservative majority on the court do anything to forestall the dynamic of escalation? It is hard to say....

The conservative justices should also consider taking more cases where legal rules favored by conservative jurists translate into policy outcomes attractive to liberals. Such cases are more common than many think, arising on issues ranging from sanctuary cities to criminal justice, among others. The more the justices can show they really are the impartial "umpires" they claim to be rather than foot soldiers in Team Red's war against Team Blue, the better their odds of avoiding a legitimacy crisis.

Agreed.  As mentioned here earlier, I think there are already at least three important prospects for a left/right alliance this term, on nondelegation, double jeopardy and excessive fines.  Also it would great if the conservative majority could avoid decisions that are both highly favorable to the conservatives politically and also very difficult to justify on the basis of originalism or judicial restraint.

(Via Volokh Conspiracy).