Justices Gorsuch and Alito cite ND Law faculty in Supreme Court opinions

Author: Denise Wager

Scotus 2019

Three Notre Dame Law School faculty members were cited in two U.S. Supreme Court cases on June 26.

Barry Cushman, the John P. Murphy Foundation Professor of Law, was cited by Justice Samuel Alito’s opinion for the Court in Tennessee Wine & Spirits Retailers Association v. Thomas. Professors Jeffrey Pojanowski and Randy Kozel were cited by Justice Neil Gorsuch in a concurring opinion in Kisor v. Wilkie.

Tennessee Wine & Spirits Retailers Association dealt with the constitutionality of residency requirements for retail liquor sales. In his opinion, Justice Alito cited Cushman’s work, Formalism and Realism in Commerce Clause Jurisprudence, to demonstrate the important role the Commerce Clause has played in the economic history of the country.

The Court in Kisor reconsidered the so-called Auer doctrine of administrative law, which governs administrative agencies’ interpretations of their own regulations. In his concurring opinion, Justice Gorsuch cited Pojanowski’s work in Revisiting Seminole Rock arguing that Auer rests on a misunderstanding of its originating case, the 1945 decision Bowles v. Seminole Rock, that Seminole Rock implies a less-deferential standard of rule, and that Congress likely codified this less-deferential approach in legislation on judicial review of agency action.

Kozel, who also serves as Notre Dame Law School’s associate dean for faculty development and directs the Program on Constitutional Structure, was also cited by Justice Gorsuch. He cited Kozel’s article, Statutory Interpretation, Administrative Deference, and the Law of Stare Decisis, which discusses the precedential effect of judicial decisions that set out wide-ranging principles of interpretation for future cases.