Supreme Court Nominations

Alito and Roberts are less like Scalia than two of the three top SCOTUS contenders, study says

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The late Justice Antonin Scalia.

Two appeals judges said to be on Donald Trump’s shortened Supreme Court shortlist are even more like the late Justice Antonin Scalia than Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr., according to an updated analysis.

The more Scalia-like appeals judges are Neil Gorsuch of the Denver-based 10th U.S. Circuit Court of Appeals and William Pryor of the Atlanta-based 11th U.S. Circuit Court of Appeals.

A third appeals judge on the shortlist, Thomas Hardiman of Philadelphia-based 3rd U.S. Circuit Court of Appeals, is closer to Roberts and Alito on the Scalia-ness scale.

The study by Mercer University law professor Jeremy Kidd and three other researchers evaluated shortlist judges based on three variables: adherence to originalism, citations of Scalia’s nonjudicial writings, and willingness to express views by writing separate opinions.

The researchers updated the study by evaluating the work of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. when they were federal appeals judges.

The study found that Gorsuch and Pryor have higher likelihoods of being the most Scalia-like justice than either Roberts or Alito did when they were federal appeals judges. Hardiman was more “in the middle of the pack,” with his likelihood of being most Scalia-like falling between that of Alito and Roberts.

A fourth judge named as a shortlister in some media reports—Judge Raymond Kethledge of the Cincinnati-based 6th U.S. Circuit Court of Appeals—trails the other three shortlisters, as well as Alito and Roberts, for Scalia-ness.

Hat tip to How Appealing and the Volokh Conspiracy.

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