Articles by Jesse Merriam

Why the Citizenship Question Matters

The Judicial Resistance has struck again. As I have explained here and here, the historic 2016 election revealed how our federal courts have harnessed their power to stifle any change on the cardinal issue of the day and the signal issue defining the division between the American Left and Right: illegal immigration. The Judicial Resistance […]

Not Your Father’s Supreme Court

President Trump on Monday announced that he was appointing D.C. Circuit Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the U.S. Supreme Court. Not since his trip down the escalator to announce he was running for president has Donald Trump uttered more significant words. Almost exactly a year and a half ago, I wrote […]

The Judicial Resistance Reveals Itself

Over the past 60 years, the federal judiciary has led a transformation of American society—from mandating enormous expenditures on diversity programs, to requiring the provision of abortion on-demand, to redefining the meaning of marriage itself. No other nation in the world has been subjected to these judicially imposed upheavals. But the 2016 election, in challenging […]

Losing is Contagious: Inconsistent Conservatism Leads to Crushing Consistency on Courts

The U.S. Supreme Court recently avoided deciding a closely followed transgender-rights lawsuit over public-school bathrooms, instead sending the case back to the lower court. But another sexual-orientation lawsuit, State of Washington v. Arlene’s Flowers, may soon come before the high court. This case arose after Arlene’s Flowers, a flower shop owned by Barronelle Stutzman, refused […]

With Gorsuch, Trump Picked the One Man Who Would Check His Power

The day after a Supreme Court nomination announcement is like Christmas morning for court watchers. It’s even more special, really, because we only get a Supreme Court nomination every five years or so. We spend the day analyzing the nominee from every imaginable perspective—contemplating what his academic credentials, legal experience, judicial record, or even biographical […]

Gorsuch May Be in the ‘Scalia Mold,’ But He’s No Scalia Clone

President Trump kept his promise in choosing a Supreme Court nominee “in the mold of Justice Antonin Scalia.” Now, as hard as it is to predict the twists and turns of any Supreme Court nomination, here’s an easy prognostication: progressives will disparage any Republican nominee as a mere “Scalia clone.” That happened with Chief Justice John Roberts. […]

Law Professors Not “Above the Fray” in their Opposition to Sessions

The U.S. Senate this week will almost certainly vote to confirm Jeff Sessions of Alabama as the next attorney general. One can hope that the vote would create more unity within Congress, and across the nation, but it will not heal the deep wounds that the legal academy has inflicted on itself over the past […]

A Fractured Coalition on Judicial Nominees

Mark Pulliam, a prolific legal writer and commentator on American conservatism, recently provided a Kirkian assessment of libertarians, wherein he argued that libertarians have exercised too much pull over the legal conservative movement. Pulliam exhorts President-elect Trump to resist the libertarian temptation in nominating federal judges. In particular, Pulliam objects to the endorsement of “judicial engagement” by […]

Sanctuary Cities and Marquess of Queensberry Rules

In a controversial 1992 free-speech case, Justice Antonin Scalia famously proclaimed that the government may not “license one side of a debate to fight freestyle, while requiring the other to follow Marquess of Queensberry rules.” That is exactly what 21st-century political discourse looks like: One side is fighting freestyle—punching below the belt, biting, doing anything […]

Make the Supreme Court Great Again

It’s called “Make the Supreme Court Great Again.” Or at least that’s how President-elect Donald Trump would likely describe the task at hand. Let’s start with what we know about this task. We know that the court’s future is something that resonated particularly strongly with Trump voters. According to national exit polls, 21 percent of […]

Delusional Originalists Against Trump

More than 50 originalist legal scholars and practitioners recently earned praise from the Left in signing a statement supporting Hillary Clinton over Donald Trump. These “originalists” insist they “are under no illusions” about Clinton’s hostility to their preferred mode of constitutional interpretation. Nevertheless, contra my diagnosis, they are confident originalism remains alive and well, and […]