When Justice Amy Coney Barrett took the bench in October 2020, she solidified a 6-to-3 conservative majority on the Supreme Court. But her confirmation also brought to the forefront divisions within the conservative legal movement that have existed for decades.

In this course, students will explore the arguments and disagreements among conservatives and libertarians over how to best understand the Constitution generally and the judicial power specifically. Fellows will consider debates over originalism, natural law, traditionalism, and judicial restraint, and explore how those debates influence jurisprudence on some of the most contentious issues in American politics, from religious liberty to abortion, gun rights, and executive power.

Image Credit: Trump White House Archives | The Supreme Court as Composed October 27, 2020, Fred Schilling, Collection of the Supreme Court of the United States

Adam J. White interviews Hon. Don Willett

Faculty

Adam J. White

Adam J. White is a Resident Scholar at the American Enterprise Institute, and an Assistant Professor at George Mason University’s Antonin Scalia Law School, where he also directs the Gray Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School.

Preview the Syllabus by Week/Session

Readings:

 

Discussion Questions:

  1. What were conservatives’ main lines of criticism against the Warren Court and “living constitutionalism”? What was the conservative alternative?
  2. What is judicial restraint? In deciding cases and controversies, how should judges go about exercising “merely judgment?” Is judicial restraint an answer to this problem?
  3. In a constitutional government based on popular sovereignty, how much power should we commit to the countermajoritarian body of judges and lawyers?

Readings: 

 

Discussion Questions: 

  1. What is originalism, and why does Scalia call originalism “the lesser evil”?  
  2. Can the Constitution’s “objective” meaning be ascertained and applied by impartial judges? What should judges do when that meaning is not readily apparent—and, more important, how can they know when they’ve arrived upon such an ambiguous case?  
  3. Is Wilkinson correct in arguing that originalism lacks judicial restraint?  
  4. In Bostock, how did conservative, originalist justices land on opposite ends of the case?  

Readings:

 

Discussion Questions:

  1. What is “judicial engagement?” How is it different from judicial restraint or judicial activism?
  2. Should judges read the Constitution in light of natural rights theory or the natural law principles of the Declaration of Independence? Does such an approach constrain or empower judges?
  3. How should conservative jurists balance their devotion to a law’s original public meaning with other conservative principles in judicial decision-making (e.g., precedent, federalism, popular rule, etc.)?
  4. What was Scalia’s reason for caution against judicial recognition of economic rights? And what was Epstein’s rejoinder?

Readings:

 

Discussion Questions:

  1. In Pierce v. Society of Sisters, what was the constitutional source of the parents’ right?
  2. What is common-good constitutionalism? Is it properly constitutionalism? How does a judge determine a “common-good principle”?
  3. Is Vermeule correct that originalism is no longer useful for conservatives?
  4. What is the relationship between common-good constitutionalism and originalism?

Readings: 

 

Discussion Questions: 

  1. What is conventionalism? Why should conservatives prefer conventionalism, according to Merrill? 
  2. How strongly bound should judges be to the doctrine of stare decisis? 
  3. How much deference should judges give to states and local communities? To practical experience and tradition? 
  4. To what extent does the legitimacy of a democratic government rest on the consent of the people, and to what extent does it rest on the correctness of its principles?  
  5. What would Hamilton’s version of judicial review look like in practice?  

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