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Supreme Court Building at dusk
Photo Credit: Shutterstock | Sean Pavone (link)

“Uncommonly Silly”—and Correctly Decided: The Right and Wrong of Griswold v. Connecticut and Why It Matters Today

Evan Bernick April 18, 2017
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It is one of the Supreme Court’s most consequential and controversial decisions, and no one should have been surprised that now-Justice Neil Gorsuch was asked about it during his confirmation hearings. In the 1965 case of Griswold v. Connecticut, the Court held unconstitutional a Connecticut statute that prohibited the use of contraceptives, affirming a “right of privacy” that appears nowhere in the Constitution’s text. Justice William O. Douglas’s majority opinion, which speaks of “penumbras, formed by emanations” from non-textual “guarantees that help give [the guarantees in the Bill of Rights] life and substance” has been ridiculed ever since it was issued. Conservative critics of the Court have long invoked “penumbras” and “emanations” to heap scorn upon the notion that the Constitution protects any rights that are not expressly listed in the Constitution’s text. [Read More]

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Justice Scalia giving the opening remarks at the 2014 National Lawyers Convention.

Why Scalia Was Wrong About Chevron

Evan Bernick March 23, 2017
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Not since the New Deal era has the scope and reach of the modern administrative state received so much public attention. It is thus unsurprising that the first Supreme Court case mentioned by Senator Diane Feinstein on the first day of Judge Neil Gorsuch’s confirmation hearings did not involve familiar hot-button issues like gun control, abortion, or campaign finance. That case was Chevron USA, Inc. v. National Resources Defense Council, Inc., a 1984 decision associated with a doctrine that requires judges to defer to federal agencies’ interpretations of statutes that they are charged with administering. [Read More]

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Grilling Gorsuch and fearing the Federalist Society

Timothy Courtney March 23, 2017
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Jonathan Adler writes for the Volokh Conspiracy:

This week, Senate Democrats have poked and prodded Judge Neil Gorsuch in an effort to derail his confirmation to the U.S. Supreme Court. They’ve asked about his judicial opinions, his writings, his work for the George W. Bush administration, and even his dissertation adviser. Throughout it all, Gorsuch has been largely unflappable, revealing that he is precisely what all who know him already knew: He’s an intelligent and conscientious, mainstream conservative judge who cares deeply about the judicial craft.

Not content to let the Gorsuch nomination sail through, some have sought to suggest he’s unfit because of who nominated him or who supports him. Sen. Sheldon Whitehouse (D-R.I.), for one, spent time challenging Gorsuch to disavow the “dark money” supporting his confirmation. Others have expressed dismay that Gorsuch is a member of the Federalist Society and was recommended to the president by the Society’s executive vice president, Leonard Leo, who has taken a leave from the organization to work on the nomination.

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