Exceptional? Legal Confirmation Battles and the Search for a Usable Past



Unprecedented” is a messy word — at any rate with regards to established governmental issues. The claim that some conduct is uncommon conveys with it a particular whiff of impermissibility: if it’s never been done, at that point at any rate the weight is on the individuals who might need to do it to demonstrate that it is permissible.1×

1. This is eminently valid in that subset of established governmental issues that comprises of legal decisionmaking. For example, asserts that the individual order forced by the Affordable Care Act was phenomenal did a considerable amount of work in NFIB v. Sebelius, 567 U.S. 519, 547– 58 (2012) (Roberts, C.J.); id. at 649– 60 (Scalia, Kennedy, Thomas, and Alito, JJ., disagreeing). For a relevant assault on this rule with regards to legal choices, see Leah M. Litman, Debunking Antinovelty, 66 Duke L.J. 1407 (2017).

A thumb is immovably put on the scale against sacred oddity. The claim that some action is unavoidably novel is thusly a politically strong one.

Obviously, to call one act a “point of reference” for another isn’t to express a reality about the connection between them yet rather to participate in an innovative demonstration of translation. Precedential connections are made, not found,2×

2. This perception is not really unique. It couldn’t be any more obvious, e.g., Jerome Frank, Law and the Modern Mind 148– 59 (1930).

what’s more, thusly charges of extraordinariness speak to a political judgment — however one that comes in the pretense of a revelation of a reality about the world. Lately, maybe no place has uncommon conduct been “found” with more forsake than with regards to legal arrangements. Part I of this Essay depicts late occasions in this space, starting in the George W. Bramble Administration and coming full circle with the 2017 end of the delay for all chosen people. Specifically, it concentrates on the talk encompassing these changes, taking note of that every step of the way, allegations of “extraordinary” conduct have flown every which way and have filled in as avocations for countermeasures, which are thus portrayed as phenomenal. Part II at that point recreates two pasts — two precedential pathways — for late occasions, one illustration on the historical backdrop of authoritative impediment and the other on the historical backdrop of affirmation governmental issues. The reason for these verifiable stories isn’t to mediate specific cases of extraordinariness but instead to feature the courses in which any claim of (un)precedentedness includes specific, contestable developments of the past. The Essay finishes up with a few considerations regarding why we may favor some accessible pasts to others.

* Professor of Law, Cornell Law School. I am thankful to Will Baude, Mike Dorf, Joey Fish-kinfolk, Randy Kozel, Marin Levy, David Pozen, Aziz Rana, Catherine Roach, and Justin Za-remby for accommodating and provocative remarks on prior drafts. The examination and writ-ing of this Essay were financed to some degree by a blessing from the Charles Adelman Fund at Cornell Law School. I appreciatively recognize the liberality of Charles Adelman and the help his blessing gives to lawful grant. Any residual blunders or infelicities are, obviously, my own.

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