Academic journal article Texas Review of Law & Politics

The Federalist Society 2012 National Lawyers Convention: Showcase Panel Iv: An Examination of Substantive Due Process and Judicial Activism

Academic journal article Texas Review of Law & Politics

The Federalist Society 2012 National Lawyers Convention: Showcase Panel Iv: An Examination of Substantive Due Process and Judicial Activism

Article excerpt


Hon. j. Harvie Wilkinson iii

Prof. Steven G. Calabresi

Prof. MarkV. Tushnet

William H. "Chip" Mellor

Hon. Walter e. Dellinger iii

Prof. Nelson R. Lund

JUDGE JONES: Welcome to our panel, the final Showcase Panel this afternoon, the subject of which is "An Examination of Substantive Due Process andjudicial Activism."

This is always a timely topic with regard to the exploration of the powers and assumptions of the federal Judiciary. I might add, however, that from the perspective of some of us, we have been in an era of unprecedented executive and legislative activism, and surely that has some consequences for what the Judiciary has to do. But if my panelists get into that subject this afternoon, I might be forced to comment myself.


JUDGE JONES: But they're much better prepared than I am. I am Edith Jones. I am on the Fifth Circuit Court of Appeals. Our distinguished panelists are Judge Wilkinson of the Fourth Circuit, Professor Steven G. Calabresi, Professor Tushnet, Mr. Chip Mellor, former Solicitor General Walter Dellinger, and Professor Nelson Lund. I will give you better bios of them in just a second.

The format of the discussion is going to be that Judge Wilkinson will lead off with his comments, followed by the other gentlemen in order, and then we will have a round of responses. Because Justice Scalia is scheduled to speak at 4:15, be advised that if the panel discussion goes too long, we are going to terminate and not keep the Justice waiting. I have seen that happen at the Fifth Circuit. It is rude from the standpoint of the moderators and justices don't like to be kept waiting.

ATTENDEE: Oh, he won't mind.

JUDGE JONES: Maybe if he had a bourbon.


JUDGE JONES: Let me introduce the panel here. I don't need to take very long because most of these people are well- known to this audience. Judge Wilkinson has had a distinguished career on the bench, having ascended at the age of sixteen-


JUDGE JONES: -after matriculating through Yale and the University of Virginia and being a newspaper editor and a law professor. In the meantime, in this lengthy biography, he is also currently a Fellow of the American Academy of Arts and Sciences and has written several books.

Professor Calabresi, one of the founders of the Federalist Society, is a Professor of Law at Northwestern University. He is Chairman of the Federalist Society's Board of Directors. He clerked for Justice Antonin Scalia and forjudges Robert H. Bork and Ralph K. Winter and served in the Reagan and the first Bush Administrations. He advised Attorney General Meese, Kenneth Cribb, and Vice President Dan Quayle. He has published extensively in areas of constitutional law.

Professor Mark Tushnet, the William Nelson Cromwell Professor of Law at Harvard, clerked for Justice Marshall on the Supreme Court and has had a teaching career that included the University of Wisconsin, Georgetown, and many visiting professorships. He is the author of numerous articles and more than a dozen books. He, too, is a fellow of the American Academy of Arts and Sciences, and he was the President of the Association of American Law Schools in 2003, when people were still hiring lawyers at a rapid clip.

Mr. Mellor is the President and General Counsel of the Institute for Justice, which he co-founded in 1991. He litigates cutting-edge constitutional cases nationwide protecting economic liberty, property rights, school choice, and the First Amendment. The Institute for Justice has litigated five Supreme Court cases, winning all of them but one. Mr. Mellor coauthored a book called The Dirty Dozen regarding the twelve Supreme Court decisions that have radically changed American life. Early in his career, he was the Deputy General Counsel for Legislation and Regulations in the Department of Energy, won the Bradley Prize in 2012, and was named a "Champion of Freedom" by John Stossel. …

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