As a new year fast approaches, let's take a moment to look back at some of the best FedSoc content from 2015. In September we relaunched our blog with a new look and focus. The blog now features commentary from an impressive assortment of independent experts drawn primarily from Federalist Society Practice Group executive committees. Our goal is to contribute original, thought-provoking analysis of the most important debates of our time.
In only a few months, the new FedSoc Blog has become one of the most visited sections of our website. Thank you to all the authors who contributed their time and talent to make the blog a success. The most read posts this year differed in topic from relatively obscure Supreme Court cases to issues with the administrative state to timeless questions about political philosophy. All of the posts, though, added nuance and interest to ongoing discussions in our culture.
Here are the most popular posts from 2015:
10. "Dollar General v. Mississippi Band of Choctaw Indians" by Thomas F. Gede
In Dollar General v. Mississippi Band of Choctaw Indians, the tribal member plaintiffs sought a $2.5 million civil judgment in tribal court against the store alleging the store manager made sexual advances toward a 13-year old boy working there under a tribal youth employment program. The civil action was brought after the U.S. Attorney declined to seek criminal charges. The mere fact that the Court took the case has shaken Indian country, where it has been assumed this tribal adjudicatory power is neither controversial nor in question.
9. "Here's an 18.2% Tax You May Not Even Know About!" by Randolph J. May
The FCC has just announced that the so-called surcharge that feeds the agency's Universal Service Fund ("USF") has been increased to 18.2% for the first quarter of 2016. This "surcharge"—really a tax, for all practical purposes—is applied to all long-distance and international telephone calls, including mobile calls, and is used to provide subsidies to support high-cost areas, schools and libraries, and low-income persons.
8. "Supreme Court Preview: Of Fisher II and Paper Tigers" by Alison Somin
So will a lady or a tiger come out next June (or whenever it is that Fisher II is published?) The bad news for my fellow critics of race-preferential admissions is that I predict it will be a tiger—that the Supreme Court will not want to overturn Grutter and hold that student body diversity is not a compelling state interest that justifies racial preferences in admissions. The good news is that I speculate it will be a paper tiger—i.e. that the court will clarify that courts ought to be sufficiently rigorous in doing narrow-tailoring scrutiny that many real-world college affirmative action programs will fail the test.
7. "Supremacy and the Supreme Court" by David Applegate
Since Marbury v. Madison in 1803, it’s been “settled law” that the Supreme Court is the last arbiter of what the U.S. Constitution means. But is it really? A respectable line of argument says “no.” [...] Yet the Constitution’s choice of “supreme” should be understood in the context of “inferior.” The Supreme Court is only the supreme “court,” not the supreme branch of government. It remains axiomatic, in theory if not in practice, that the three branches are co-equal.
6. "A Speaker Must Be a Member of the House" by David F. Forte
Since 1377 when the Rolls of Parliament noted that the House of Commons had a “Speaker,” it has been unbroken tradition, whether in England or the United States, that the Speaker has been a member of the body that has chosen him. In England, the King used to be able to consent to the nomination of Speaker, and in Tudor times, when the crown was seeking to become like France, the King used his threat of veto to influence who would be the Speaker. But the Speaker was still drawn from the House.
5. "2015 NLC Live Blog" by Daniel T. Richards & Timothy Courtney
The 2015 National Lawyers Convention is in full swing! (We were trending on Twitter.) This year we're collecting all the great content that gets generated at the convention—blog posts, videos, news article, photos, live streams, interesting tweets, and more—all in one place. Right here. The FedSoc Blog (and this post in particular) is your one-stop shop for NLC-related material. Check back often for updates. #FedSoc2015
4. "Ruminations on the Rule of Law" by David Applegate
The United States is famously a nation of laws and not of men—or must we now say “persons”?—but what, exactly, does that mean? And, more important, is that still even true? Rule of law, in its essence, is a concept as least as old as the Magna Carta, which celebrated its 800th anniversary this past year more in the breach than in the observance. According to this principle, the government and the people are governed by a knowable and predictable set of written principles that apply equally to everyone within the jurisdiction of the government. Only if those principles are knowable and predictable can people optimally organize their affairs to pursue happiness.
3. "A Strong Showing for Evenwel Plaintiffs in One-Person, One-Vote Argument" by Andrew Grossman
Why shouldn’t vote weight matter in drawing district lines, “especially when voter-based apportionment…is being substantially disregarded?,” Justice Anthony Kennedy asked Texas Solicitor General Scott Keller at oral argument this morning in Evenwel v. Abbott. Justice Kennedy’s question hit the nail on the head. The case is a challenge to Texas’s practice, shared by the other states, of drawing district lines based on raw population, rather than voter population, with the result that the value of an individual vote can vary wildly based on the number of nonvoters included in different districts.
2. "Supreme Court Preview: Puerto Rico v. Sanchez Valle" by Richard Pildes
The case, Puerto Rico v. Sanchez Valle, implicates the question that has haunted U.S.-Puerto Rico relations since the 1950s: what is the legal “status” of Puerto Rico and what precisely is the island’s legal and constitutional relationship to the United States? As the well-crafted certiorari petition began: “This is the most important case on the constitutional relationship between Puerto Rico and the United States since the establishment of the Commonwealth in 1952.”
1. "Justice Scalia and Mismatch" by Alison Somin
I understood Justice Scalia's comments to be referring to what is generally called the mismatch critique of affirmative action. Mismatch refers to the loss of learning that occurs when a student is placed in a setting where her credentials are below those of the median student. That is, most of us learn more when we are surrounded by peers whose background in a subject is similar to our own than we are surrounded by a group too far ahead of us. Outside the racial context, this phenomenon is ordinary and unobjectionable. The basic concept is unlikely to shock anyone who has ever been a student, a parent, or an amateur trainer of golden retrievers (and certainly not those of us who have been all three.)