Keynote Address: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions

Justice Scalia believed in the rule of law as a law of rules. He wanted judges to be umpires, which ordinarily entails judges applying a settled legal principle to a particular set of facts. I agree with that vision of the judiciary. But there are two major impediments in current jurisprudence to achieving that vision of the judge as umpire. The first is the ambiguity trigger in statutory interpretation. The second is the amorphous tests employed in cases involving claimed constitutional exceptions. We should identify and study these issues. Inspired by Justice Scalia’s longstanding efforts to improve the law, we all must continue to pursue the ideal of a neutral, impartial judiciary

The Judge as Umpire: Ten Principles

In his speech, Judge Kavanaugh discusses the notion of Judges as umpires and sets forth ten principles that are vital for an impartial judiciary dedicated to the rule of law in our separation of powers system. According to Judge Kavanaugh, Judges cannot act as partisans, must follow establish rules and principles, and must strive for consistency, not only in terms of respecting precedent, but from day to day, in how they decide cases, confront issues, interpret statutes and interpret the Constitution. Judges must also understand that their role is to apply the rules rather than remake the rules according to their own policy views and have the fortitude to stand up to the other political branches in deciding that an action is unconstitutional or otherwise unlawful. In maintain their role in standing up to other political branches and refraining from remaking the law, Judges must have the ability to tune out criticism, so that they are able to stand up for unpopular positions. It is also important that Judges maintain open minds, refraining from making decisions based on preconceived notions and have a willingness to change their minds. In their conduct, Judges must maintain a proper demeanor, keeping emotions in check, be collegial, and have the ability to work with colleagues and learn from them in order to reach the best decisions. And finally in reaching their decisions, Judges must be clear in explaining their reasoning behind a decisio

Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution

When one comes to Notre Dame, whether for a law review symposium or for a football game or for both, your mind is drawn to fundamentals and history. This is a place that oozes history, and in that vein, I want to take a step back and focus on the text of our Constitution. I want to focus on that text in two dimensions. First, I want to explain how the text of the Constitution creates a structure—a separation of powers—that protects liberty. And in particular, I want to emphasize how that structure tilts toward liberty, how it creates legislative and executive branches with finely specified powers so as to protect individual liberty against oppressive legislation. Second, I want to focus on the role of the Supreme Court in that constitutional structure—and how the Court itself looks to the precise words of the constitutional text both to preserve the separation of powers established by the Constitution and to protect individual liberty. My overriding message will be that one factor matters above all in constitutional interpretation and in understanding the grand sweep of constitutional jurisprudence—and that one factor is the precise wording of the constitutional text. It’s not the only factor, but it’s the anchor, the magnet, the most important factor that directs and explains much of constitutional law, particularly in the realm of separation of powers

Remarks at Notre Dame Law School

During the Notre Dame Law Review’s 2023 Federal Courts Symposium, students and faculty gathered in the McCartan Courtroom in Eck Hall for a conversation with Justice Kavanaugh. Dean G. Marcus Cole moderated and fielded questions from attendees. Highlights from the event, adapted for print, are reproduced below. Questions and responses have been lightly edited for readability and clarity

The Judge as Umpire: Ten Principles

In his speech, Judge Kavanaugh discusses the notion of Judges as umpires and sets forth ten principles that are vital for an impartial judiciary dedicated to the rule of law in our separation of powers system. According to Judge Kavanaugh, Judges cannot act as partisans, must follow establish rules and principles, and must strive for consistency, not only in terms of respecting precedent, but from day to day, in how they decide cases, confront issues, interpret statutes and interpret the Constitution. Judges must also understand that their role is to apply the rules rather than remake the rules according to their own policy views and have the fortitude to stand up to the other political branches in deciding that an action is unconstitutional or otherwise unlawful. In maintain their role in standing up to other political branches and refraining from remaking the law, Judges must have the ability to tune out criticism, so that they are able to stand up for unpopular positions. It is also important that Judges maintain open minds, refraining from making decisions based on preconceived notions and have a willingness to change their minds. In their conduct, Judges must maintain a proper demeanor, keeping emotions in check, be collegial, and have the ability to work with colleagues and learn from them in order to reach the best decisions. And finally in reaching their decisions, Judges must be clear in explaining their reasoning behind a decisio

Effect of gaseous and solid simulated jet plumes on a 040A space shuttle launch configuration at Mach numbers from 1.6 to 2.2

An experimental investigation was conducted in a 9- by 7-foot supersonic wind tunnel to determine the effect of plume-induced flow separation and aspiration effects due to operation of both the orbiter and the solid rocket motors on a 0.019-scale model of the launch configuration of the space shuttle vehicle. Longitudinal and lateral-directional stability data were obtained at Mach numbers of 1.6, 2.0, and 2.2 with and without the engines operating. The plumes exiting from the engines were simulated by a cold gas jet supplied by an auxiliary 200 atmosphere air supply system, and by solid body plume simulators. Comparisons of the aerodynamic effects produced by these two simulation procedures are presented. The data indicate that the parameters most significantly affected by the jet plumes are the pitching moment, the elevon control effectiveness, the axial force, and the orbiter wing loads