Richard M. Re
@RichardMRe
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Professor, UVA School of Law
Charlottesville, VA
Joined May 2014
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Here’s the video of my recent remarks on the One Big Question shaping legal culture.
The prepared text is here:
Balkinization: Richard Re on "The One Big Question"
Many thanks to Andy Coan, Rebecca Aviel, David Schwartz, Eunice Lee, Shalev Roisman and Bernadette Wilkinson for putting on the conference!
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Justice Jackson making a serious play to dethrone Alito and Kagan as SCOTUS’s best questioner.
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I am familiar with the work of one reported SCOTUS short-lister, and I can confidently tweet that she is nobody's "lesser" candidate.
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Justice Kagan recently wrote that the "current Court is textualist only when being so suits it.”
I have a new draft paper on this: “Permissive Interpretation.” Comments welcome!
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I’d just like to thank the talented, hard-working editors at
@IowaLawReview
again for publishing and doing such great work on my recent essay. Student editors generally deserve more credit from profs for what is too often a thankless job (or worse).
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@AshaRangappa_
@earlymodjustice
Isn’t this passage consistent with a pro immunity view? The passage explicitly envisions prosecution after impeachment and removal, doesn’t it?
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I'm very excited to be joining
@UVALaw
this fall! But I'm also going to miss my friends, mentors, colleagues, and students
@UCLA_Law
, where I have spent six terrific years and started my academic career. Thank you all.
.
@RichardMRe
, an expert in federal courts and procedure whose work had
#SCOTUS
talking in 2018, will join the
#UVALaw
faculty.
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For folks arguing there’s a glaring standing problem in 303 Creative:
How do you explain why Justice Sotomayor didn’t pick up on this in her dissent?
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New draft: "Personal Precedent at the Supreme Court." Comments welcome and appreciated!
@HarvLRev
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Hypothesis: Justice Jackson can more easily deploy liberal originalism because, unlike her left colleagues, she hasn’t spent the last several years exalting precedent to protect Roe.
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Hypothesis: proposing student loan forgiveness so that it would be struck down in court was the point.
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What is the best descriptive effort to explain the conservative turn against Chevron in non-cynical terms?
(The obvious cynical explanation is that, after the 1980s, Rs increasingly controlled the courts rather than agencies.)
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Two kinds of judicial fearlessness: (1) doing what’s right even when it’s contrary to “elite” opinion; (2) doing what’s right even when it will disappoint or frustrate your allies, or the people who put you on the bench. Folks seem to focus opportunistically on one or the other.
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I'd like to thank the student editors of
@TexasLRev
. Despite a pandemic year and a weather crisis in TX, the editors did a fabulous job improving my paper and bringing it to publication. 👏
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This piece by
@adamliptak
thoughtfully discusses my new paper, with great critical thoughts by Prof Allison Orr Larsen: "Problem of ‘Personal Precedents’ of Supreme Court Justices"
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While reading ‘textualist’ defenses of the MQD, I’m starting to worry that new lawyers won’t know what textualism is. Or was.
For example, doing what feels to you like ‘common sense’ isn’t textualism.
And, to be legitimate non-textualism, the ‘sense’ must actually be ‘common.’
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My sense is that there are a lot more “no, let me finish what I’m saying” moments at SCOTUS oral arguments recently—both by justices and by advocates. Anyone else have this impression? Feels like a norm shift.
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This sharp rhetoric between left justices is helpful. It shows that harsh rhetoric is just a fact of life now at SCOTUS. Its presence in a case doesn’t prove that anyone is evil and/or incompetent.
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I’ve heard this sort of view before, sometimes the other way around—ie, ‘Scalia is highly persuasive to students and new lawyers, but almost only to them.’
Would be interesting to test empirically.
RIP Sandra Day O'Connor. As Mark Twain might have said, when I was a law student, her opinions were so unpredictable I could hardly stand to read them, but when I got to be a grown-up lawyer, I was astonished at how intelligible they became.
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Here’s my new piece on the escalating pattern of manipulative judicial retirements.
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Did the Supreme Court Overrule Equity?
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If this Court is “fearless,“ is it any more so than the ones that decided Brown, Casey, or Obergefell? Or is it a different type of fearlessness?
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Draft paper: “A Law Unto Oneself: Personal Positivism and Our Fragmented Judiciary.” Comments most welcome!
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Many thanks to the
@PennLRev
editors for this kind tweet and their great help with this project.
The University of Pennsylvania Law Review is excited to publish Professor Richard Re’s timely article, Permissive Interpretation:
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Counterpoint: maybe great judges were great because they identified ambiguities, assumptions, and opposing principles in the law.
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McConnell: “in my opinion, we should seek the narrowest, most precise, least susceptible to abuse, definition that is consistent with history and precedent.”
What type of originalism is this? Is it one at all? (This isn’t a criticism. A sincere question.)
[Eugene Volokh] Prof. Michael McConnell, Responding About the Fourteenth Amendment, "Insurrection," and Trump
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Will we soon see an anti-institutionalist Supreme Court justice? That is, a justice who doesn’t just disagree about how to keep the institution legitimate or worry it might become illegitimate, but who claims that the institution is already, and perhaps irreparably, illegitimate?
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Justice Jackson’s dissent today is captioned in part for Case No. 20-1199, but includes a footnote saying that she didn’t participate in Case No. 20-1199.
That’s recusal at SCOTUS.
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@AshaRangappa_
@earlymodjustice
Ok, but that doesn’t help your point. And your original allegation of contradiction or change of mind, based on the passage you quoted from and reproduced, is unfounded.
At any rate, I’m glad that you’re giving Kavanaugh’s paper a wider readership! It’s a good essay.
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“Does the Discourse on 303 Creative Portend a Standing Realignment?”
Comments very welcome.
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The “One Big Question” Shaping Legal Culture
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This amicus brief changed the way I thought about justiciability in the student loan forgiveness cases. It’s a must-read.
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The justices’ statements regarding Justice O’Connor are moving and apt, but they also do work: they shore up collegial, non-partisan norms in an institution that needs them.
(My favorites are by Justices Barrett and Breyer—quite different, both great.)
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I recently posted a draft paper, "Clarity Doctrines," which is forthcoming in
@UChiLRev
. I'd be grateful for any comments!
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The final version of “Personal Precedent at the Supreme Court” is posted. Many thanks to the
@HarvLRev
editors for their great work!
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Is Justice Kagan Done With Stare Decisis?
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Many thanks to the Notre Dame Law Review editors for their help on this piece!
Link:
In "Does the Discourse on 303 Creative Portend a Standing Realignment?",
@RichardMRe
argues that criticism that 303 Creative was a “fake” case brought by someone because “she worries” is unfounded; the discourse may portend an ideological reversal in federal court jurisdiction.
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But … scholars do not own the facts they uncover.
Imagine if they did!!
A trenchant rejoinder from a scholar whose work Clarence Thomas misinterpreted and misrepresented in his venomous affirmative action concurrence.
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In recent years, R-appointed federal judges have been criticized for playing to their ideological base and uncritically absorbing ill-founded memes.
This behavior is now becoming bipartisan.
In one of the first rulings to cite the recent Supreme Court case involving LGBT rights, a Mississippi judge applies the new "worries" test to establish standing.
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I’m curious about what’s driving the “record-breaking number of submissions” this cycle. Eg, is this delayed 2020 work? Some authors being extra productive? Is there any data on this?
@scholasticaLR
Authors: By now many of you have noticed our Scholastica portal has closed. Selection went far more quickly than anticipated, in part because of the record-breaking number of submissions received this year. We recognize this is not the result we promised, and we apologize.
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Draft: “Artificial Authorship and Judicial Opinions.”
Comments very welcome!
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Possibly under-appreciated line from Kagan’s Warhol dissent: “the majority does something novel (though in law, unlike in art, it is rarely a good thing to be transformative).”
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Judicial opinions often start off with language like “opinion concurring in part” or “dissenting” and so forth. What do or should we call that set of expressions?
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Woolhandler on “State Separation of Powers and the Federal Courts.”
This is an important paper on everything from SB8, to non delegation, to ISLD.
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Alito just now, asking explicitly: isn’t it important that *someone* have standing?
This is relative standing, consistent with the subtext of Clapper (by Alito). See below.
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At oral argument last year in Ysleta del Sur Pueblo v. Texas, Justice Kagan criticized substantive canons and wondered: "Maybe we should just toss them all out...?"
Now, this paper:
I've posted a new draft on SSRN—"The Incompatibility of Substantive Canons and Textualism"—co-authored with my
@Harvard_Law
colleague Matthew Stephenson. Here's the link, and the abstract is below. Comments very welcome!
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@JRubinBlogger
Yes, I am.
I see that Justice Sotomayor quotes the word “worries.” Do you see her arguing there is no standing or jurisdiction?
Also, the majority invoked the “credible threat” standard.
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Judge Easterbrook in 2004:
“Both on and off the bench, Justice Scalia has proclaimed himself a fan of Chevron. It is hard to find thoroughgoing critics of that case and the doctrine it summarizes.”
That was 20yrs after Chevron. Another 20yrs later, Chevron may be overruled.
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I've posted a draft paper on the Court's treatment of precedent in Janus. Comments welcome!
Coming up in vol. 66: UCLA’s
@RichardMRe
will look at the doctrine of “one last chance,” in light of the Supreme Court’s Janus decision.
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Excited to see the published version of this phenomenal note, “The Common Law of Interpretation” by Christopher J. Baldacci.
@VirginiaLawRev
.
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This is a serious point. Courts for instance might prefer opaque prose over writing that is clearly wrong or unpersuasive.
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This comparison makes the rhetoric here even more striking. This isn’t a once-in-a-generation con law ruling that divided 5-4 along ideological lines.
Kagan is on the short side of a 7-2 decision regarding copyright, and the majority author is her ideological ally.
It's not the hide-my-head-in-a-paper-bag footnote, but this is pretty saucy.
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Justices Thomas and Barrett have offered some deep defenses of their legal views.
The result: key claims rest on intuitions that are plausible yet controversial.
That isn’t embarrassing. It doesn’t necessarily mean they are ruling illegitimately.
It’s just helpful to see.
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@steve_vladeck
But see
Alito just now, asking explicitly: isn’t it important that *someone* have standing?
This is relative standing, consistent with the subtext of Clapper (by Alito). See below.
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Arguably true of all amicus briefs by extension. Briefs joined by a ton of groups, even expert groups, are often/usually just symbolic or the result of politics.
@maryrziegler
@rachelshelden
@kmtani
@alahav
@TheGNapp
@jdmortenson
@jackbalkin
@SHEARites
@n_hold
As a general rule, the more signatories, the more terrible the academic group brief is; it suggests people signed on to "support the team," and a lot did, not because they actually agree with (or know much about) what it says. /3
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Could a similar point apply to law?
Some academics reject the distinction between science and advocacy and then are surprised policymakers don't listen to them.
What makes academics credible in the policy world is our rigorous methods and rules of evidence. If we throw those out for the sake of "the cause",
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@citizenjeff
@AshaRangappa_
@earlymodjustice
I strongly disagree. This is a difference of opinion, I believe it is in very much good faith, and I am learning from the exchange.
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Balkinization: Richard Re on "The One Big Question"
Many thanks to Andy Coan, Rebecca Aviel, David Schwartz, Eunice Lee, Shalev Roisman and Bernadette Wilkinson for putting on the conference!
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Thanks to the students of Sports and Games for making this class a home run! (Err, I mean a slam dunk, err…)
Prof.
@RichardMRe
’s course brings lessons on discretion, society and adjudication from the stadium to the classroom.
@uva
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Today, the legal left often wants to emphasize democracy over judicial power. But that posture is conducive to recent scotus rulings such as Dobbs and Anderson.
How to navigate that tension/conflict may be the left’s most pressing intellectual challenge. How can it be done? /1
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Guess the source:
“But the determination of what is major and what is minor itself raises questions of policy.”
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Pulsifer v. United States as Permissive Interpretation | Re’s Judicata
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My favorite part of Justice Kennedy's opinion in Packingham.
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A modest proposal: if you are going to invoke “common sense,” the sense invoked should actually be common.
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Justice Sotomayor regularly comes in for left criticism when she praises her colleagues, such as for being good people.
One mark of an anti-institutionalist justice would be a refusal to do this.
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“The Road to a Supreme Court Clerkship Starts at Three Ivy League Colleges” featuring work by George, Gulati, and Yoon
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Many Dobbs supporters argued that the case returned abortion to the political process, while many critics noted the ruling was unpopular.
The Harvard affirmative action ruling flipped those talking points.
What can we learn from this?
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Remember when the Chief seemed to criticize certain harsh dissents, and Kagan responded? That’s what this is about.
Prof.
@RichardMRe
examines strategic ambiguity in
#SCOTUS
opinion writing, most recently Biden v. Nebraska.
#appellatetwitter
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“The most remarkable thing about the Court’s federalism-based resolution, which all nine Justices approved in large measure, is that it was not among the ten or more arguments that the parties… presented to the Court, nor is it… in the many law review articles about Section 3”
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Link:
It has been the greatest honor of my career to write the Foreword for this term's
@HarvLRev
. I am grateful to have been able to tell this story and to tell it from the heart in such a prominent forum. As always, I dream of a day when words can change minds and hearts--and worlds.
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What SCOTUS cases this term, if any, significantly moved case law to the left (as opposed to entrenching existing case law)?
The court is actually back to moderation, didn’t you know. “What we saw,” David Cole said, “was a reversion to the mean.” 🤦🏻♂️
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I got to talk about judicial ethics with
@RisaGoluboff
and
@amanda_frost1
.
Unsurprisingly, I learned a lot—and had fun, too!
Should we be regulating the ethics of Supreme Court justices — and how?
#UVALaw
professors
@amanda_frost1
and
@RichardMRe
join host
@RisaGoluboff
for the season 6 kickoff.
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Interesting implications for debates on judicial legitimacy. 👇
A GREAT example of why refs get verbally abused at every game ever!
90% (or higher) of people have no freaking clue what the actual rules are!!
Announcers were wrong. Fans were wrong. Even the NC State coach was wrong.
And I’m guessing most still don’t know they are wrong🤦🏼♂️
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The Originalist Disaster in Trump v. Anderson by Mike Rappaport
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Listening to recent oral arguments and still noticing this. Advocates talking over justices, not stopping when a justice speaks, interrupting, etc.
My sense is that there are a lot more “no, let me finish what I’m saying” moments at SCOTUS oral arguments recently—both by justices and by advocates. Anyone else have this impression? Feels like a norm shift.
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Another front in the standing realignment.
Recently, conservatives were standing skeptics in abortion cases brought by doctors, and liberals were enthusiasts.
That alignment seems poised to reverse.
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Another possibility: by declining to time her appointment to politics, RBG promoted norms of judicial neutrality. See
Exactly this. She is, from where I sit, a good justice, but hardly irreplaceable. None of them are.
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@EdWhelanEPPC
@benshapiro
Yes,
@benshapiro
seems clearly wrong here. I clerked for Kavanaugh several years ago, and it is hard to imagine a clearer textualist record. Also, Kavanaugh's bracing
@HarvLRev
piece marks him as a cutting-edge textualist thinker.
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Double hearsay, but interesting: "Judge Laurence Silberman of the D.C. Circuit Court of Appeals told us recently that his long-time friend and colleague Antonin Scalia told him before he died that even he would not have sought to overturn Roe today."
“The Abortion Scare Campaign: Why Roe v. Wade and same-sex marriage are likely to survive after Kennedy.” This editorial appears in today’s edition of The Wall Street Journal.
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“The problem, of course, is that those maxims embed within context and convention the very purposivism that Barrett otherwise wants to stamp as unacceptable for the textualist.”
Strong critique here.
A question for
@Vermeullarmine
: are you a textualist by the end of this post?
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I was reading something written pre-Covid and hit a line about how Justice Thomas basically never talks during oral argument.
What a huge change. And, in a sense, another victory for him: in important ways, oral arguments have gotten more orderly, as he long desired.
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Not to belabor this, but is it at all plausible that Jackson didn’t “participate in the consideration” of the Harvard case?
Her dissent responds to a majority opinion about both cases. And that majority opinion responds to her points!!
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How can SCOTUS ethics reform respect judicial independence but also have teeth?
Ian Ayres and I have a proposal: judicial ethics through binding resignations:
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Important new paper by Pozen, Talley, and Nyarko uses algorithmic methods to study constitutional discourse:
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Is it possible that the left’s alarm about SCOTUS cases this term handed the Court a public relations boon?
By creating expectations of big losses in so many cases, the left made the Court seem moderate whenever it defied the expectations.
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Does Textualism Defeat the Major Questions Doctrine?
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Kagan links judicial writing with the rule of law — perhaps her most important remarks to date on her craft (which is saying something).
Thread: Watch Justice Elena Kagan present to Chief Justice of the U.S. John G. Roberts, Jr. at the
@AmLawInst
dinner last evening the Henry J. Friendly Medal -- the remarks of each are worth your time:
#SCOTUS
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Among originalists, how strongly does supportiveness of Trump predict views on Section 3? Are there many examples of pro Trump originalists in favor of disqualification, or vice versa?
Notably, there are many examples of non-originalist Trump opponents against disqualification.
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This makes even more timely Rachel Bayefsky’s paper on administrative stays:
How is this an “administrative stay”? The district court dismissed the suit for lack of standing. Staying *that* does … nothing.
This is an emergency injunction — in function if not in form. A temporary one, to be sure (with briefing done by Tuesday), but still…
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My new draft paper "Beyond the Marks Rule" is posted here: . Comments are most welcome.
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A helpful piece, with (or despite) quotes from me.
One added comment: not all of Justice Kennedy’s jurisprudence is going by the board. Free speech, campaign finance, LGBTQ rights (eg Bostock), and more complicate the headline.
Kennedy’s Supreme Court legacy is being erased, in part by past clerks
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New essay draft: "The Peril and Promise of SCOTUS Resignations," on Justice Breyer, judges reneging on resignations, and SCOTUS term limits. Comments most welcome!
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“And whenever the Supreme Court heard a case involving the rights of criminal suspects, he’d remind us that he was the only Justice who’d ever been in handcuffs — or sat on the wrong side of an interrogation table.”
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Many thanks to
@marinklevy
for her generous review of my forthcoming paper "Beyond the Marks Rule"
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Reading an academic article that cites a bunch of law prof tweets and realizing that I’ve cited tweets recently, too.
This kind of evidence seems new. Is it making scholarly debate more self-referential, or just better sourced? (Will this tweet itself be cited?)
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What is this obviously unplanned thread about? Maybe it’s about how judges are praised or criticized in a partisan age, including by one another. A pat rhetorical structure is always available, stunting real thinking or engagement. It avoids facing EITHER the merits OR politics.
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The “no true Scotsman” objection to originalism has never truly been made.
1/5 The "no true Scotsman" objection is frequently raised in discussions of originalism. The discussion that follows deals with the objection in the context of normative constitutional theory.
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Solum: “The last two terms, the big cases are almost all conservative living constitutionalist decisions.”
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