Senator Mitch McConnell defended his handling of the Merrick Garland nomination by declaring that the American public should have a say in the matter, through the vehicle of the 2016 election. That defense makes some intuitive sense. Because each Justice is appointed by a popularly-elected Executive official (the President) and confirmed by a popularly-elected legislative body (the Senate), the Court is procedurally majoritarian. The appointment and confirmation process, in other words, helps shield the Court from the countermajoritarian difficulty. But is this sentiment correct? Is the Court actually procedurally majoritarian? I explored these questions by building a dataset examining the confirmation votes behind each Supreme Court justice. My analysis yielded several conclusions worth highlighting. Notably, Justices Kavanaugh and Gorsuch are the only members of the Court to have been (1) nominated by a President receiving less than a majority of the vote and (2) confirmed by Senators representing less than a majority of the U.S. population. Thus, while the Court has historically been procedurally majoritarian, the Kavanaugh and Gorsuch nominations constitute a significant break from this tradition. I note as well that the circumstances behind the Kavanaugh and Gorsuch nominations may well become the rule, rather than the exception, in the future, both at the Supreme Court and within the federal circuit courts. That result may affect the Court’s decisionmaking and jeopardize public faith in the Court’s legitimacy — implications that are ripe for additional research.
The United States is undergoing a legal realignment, in that salient legal views recently associated with the right are now being espoused by the left...
This essay considers the future of public-private collaboration in the wake of the Murthy v. Missouri litigation, which cast doubt on the...
Almost half of the states in the country have made it harder to get an abortion since the Supreme Court in 2022 overturned the federal right to get an...
History and precedent tell us that the just compensation requirement has been implemented by a complex network of remedies providing multiple avenues...
It has been a big moment for court reform. President Biden has proposed a slate of important if vaguely defined reforms, including a new ethics regime...
After a term in which the conservative Roberts court swept aside the Chevron doctrine, a decision that will clip federal agencies’ authority to enact...
In Cantero v. Bank of America, the US Supreme Court declined to decide whether Bank of America Corp. must pay interest on New York mortgage borrowers’...
The Supreme Court has overruled Chevron v. Natural Resources Defense Council, finally interring a doctrine of statutory interpretation that it had...
On June 27, 2024, the U.S. Supreme Court dismissed a case brought by the federal government regarding whether Idaho’s abortion ban conflicts with a...
On Thursday afternoon, in an important lawsuit seeking to clarify which religious objectors will be taken seriously when they seek legal exemptions, a...
We apply a dynamic influence model to the opinions of the U.S. federal courts to examine the role of the U.S. Supreme Court in influencing the...
In February 2024, the Alabama Supreme Court issued an unprecedented decision, finding that frozen embryos should be treated as children under Alabama...
The Environmental Law and Community Engagement Clinic at the University of Virginia School of Law filed this amicus brief on behalf of San Bernardino...
Who has the legal right to challenge decisions by the U.S. Food and Drug Administration? And should the moral umbrage of a group of anti-abortion...
President Joe Biden promised during his State of the Union address on March 7, 2024, that he would make the right to get an abortion a federal law.
“If...
An upcoming Supreme Court case on Article III standing and disability presents critical questions about the future of litigation that promotes...
Professor Elizabeth Scott, the chief reporter of the American Law Institute’s (ALI) Restatement of Children and the Law, has often observed that the...
The Administrative Procedure Act’s standard-of-review provision instructs reviewing courts to “decide all relevant questions of law, interpret...