My Unprecedented Talk at George Washington Law School with Orin Kerr

September 17th, 2013

On Tuesday, 9/17 (Constitution Day!) I gave a talk at the George Washington Federalist Society on Unprecedented, with commentary by Orin Kerr. While most of my previous talks focused on telling the story of the challenge, I took advantage of Orin’s appearance to focus on something I alluded to in a recent post–how do members within the big tent of the Federalist Society break down along lines of what may have historically been called judicial restraint (what Garrett Epps described as the ghosts of Ronald Reagan) and what is now viewed as the Cato/IJ approach to judicial engagement.

My sense is that the former movement is on the decline, and the latter is on the ascendancy. At several FedSoc events, at the outset, students leaders read off several principles of the organization. One of which is judicial restraint. I question how many FedSoc members embrace that position.

Orin contended that this change is simply a reflection of the fact that the Court is predominantly tilted towards conservative results, and that conservatives tend to like engaged judges in these cases. I differ, and think the rise of the libertarian wing within the FedSoc tent is responsible for the growing comfort of judicial engagement. The libertarian outcome in many cases may be viewed as anti-majoritarian, with Courts having a broader licenses to protect individual liberty. On this last point, I think Orin and I agreed. But since there is no video, it never happened.

We will likely be having this debate more and more over the years. Perhaps a straw poll may be helpful.

Unfortunately, my recording of the event punked out after two seconds. The outlet I plugged the camera into at the lectern apparently had no juice. So here is a great clip of Orin adjusting some flip cups. You can watch it in slow-mo like the Zapruder film.

But I do have some pics, courtesy of the George Washington Federalist Society, which put on a great event!