E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
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Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
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Jonathan Hafetz jonathan.hafetz at shu.edu
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Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
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Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
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Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Let's assume that this week's decisions tell us something about what a conservative Supreme Court does. Borrowing from my mentor Mike Seidman, I ask what are the characteristic modes of decision-making of the conservative Court? A series of "nots": Not committed to a principle of judicial restraint; not originalist in any serious sense; not committed to following precedents even when they are uncomfortable; not incrementalist.
In a full exposition, I'd insert some qualifications and explanations: The integration cases are "originalist" if one pursues original understandings on a high enough level of generality; there's a long-ish explanation of why the distinction proferred in Hein to "save" Flast won't work in light of decisioins purporting to authorize as-applied Establishment Clause challenges to statutes that are facially constitutional; and so on. But, when you put everything together, who are the true predecessors -- in terms of method -- of Chief Justice Roberts and Justice Alito?
I ask what are the characteristic modes of decision-making of the conservative Court? A series of "nots": Not committed to a principle of judicial restraint; not originalist in any serious sense; not committed to following precedents even when they are uncomfortable; not incrementalist.
A good samaritan who tacked a purse snatcher, took the purse and returned it to the owner is not robbing the purse snatcher, but rather is returning the purse to its rightful owner.
Originalism is being true to the Constitution as it is written and intended, not to prior Courts. Reversing prior court decisions which exceeded the Constitution and replacing them with decisions which are truer to the Constitution is not activist in the least, it is correcting part activism.