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Professor Derek Muller, "Diverging Supreme Court Trends" -- Law and Liberty

January 3, 2019 | Professor Derek Muller' s op-ed, "Diverging Supreme Court Trends May Leave Some Conservatives Out In the Cold," has been published in the Law and Liberty blog.  The article considers the Supreme Court's choice in hearing two recent cases.

Excerpt from Diverging Supreme Court Trends:


The replacement of Justice Anthony Kennedy was an opportunity for a different kind of Supreme Court, much to the delight of many conservatives and the dismay of many liberals. But December 10, 2018 may be the day that showed us that the Supreme Court of the future may not be the one that all conservatives longed to see.

On that day, the Court considered two cases that addressed concerns long deemed problematic by conservatives. The first was a case that could reconsider the deference federal courts give to federal agencies when the agencies are interpreting their own regulations. The second was a case that could have clarified that federal courts cannot imply a cause of action in a federal statute for private parties when Congress has not expressly done so.

Both cases sound dry. The Court chose to hear one and not the other. And in its decision to do so, it suggested that the Court's newly configured membership may eschew the concerns of social conservatives.

The complete article may be found here