FIRST ONE @ ONE FIRST

McDonald: Caricatures on Parade

Posted in Case Reports by Mike Sacks on March 4, 2010

If I were Art Lien, I would have had a very hard time sketching the McDonald oral argument without caricaturing the justices:

  • Chief Justice Roberts, super-restrained stare decisis security guard:
  • Of course, this argument is contrary to the Slaughter-House cases, which have been the law for 140 years. It might be simpler, but it’s a big — it’s a heavy burden for you to carry to suggest that we ought to overrule that decision.
  • Your approach -­ your original approach [with the Privileges or Immunities Clause] would give judges a lot more power and flexibility in determining what rights they think a good idea than they have now with the constraints of the Due Process Clause.
  • Justice Scalia, faint-hearted originalist foe of abortion and gay rights; rock-ribbed textualist:
  • I’m not talking about whether — whether the Slaughter-House Cases were right or wrong….[W]hy are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due [process]? [...] Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it’s wrong, I have — even I have acquiesced in it?
  • I guess we have applied substantive due process with regard to the necessity of permitting homosexual conduct and with respect to the necessity of permitting abortion on demand.
  • That may be the reason it was put there. But it was put there.  And that’s the crucial fact. It is either or it is not there. And if it’s there, it doesn’t seem to me to make any difference why they chose to put that one there as opposed to other ones that they didn’t put there. It’s either there or not.
  • Justice Stevens, old man minimalist:
  • [W]ould you comment on Justice Kennedy’s question about whether it necessarily incorporates every jot and tittle of the Federal right into the [states], keeping in mind that with regard to trial by jury in criminal cases there is a difference, non-unanimous juries. Why does this incorporation have to be every bit as broad as the Second Amendment itself?
  • Justice Ginsburg, foreign law feminist:
  • Did married women at that time across the nation have the right to contract, to hold property, to sue and be sued?
  • [I]f the notion is that these are principles that any free society would adopt, well, a lot of free societies have rejected the right to keep and bear arms.
  • Justice Breyer, professorial pragmatist:
  • Look at the statistics. You know, one side says a million people killed by guns. Chicago says that their — their gun law has saved hundreds, including – and they have statistics — including lots of women in domestic cases. And the other side disputes it. This is a highly statistical matter.
  • [L]et’s make up an imaginary importance of ordered liberty chart, and we give it to James Madison and the other framers. And he would say insofar as that right to bear arms is important for the purpose of maintaining the militia, it’s high on the ordered liberty chart. Insofar as the right to bear arms is there to shoot burglars, it’s low on the ordered liberty chart.
  • Justice Sotomayor, “she really can’t be that moderate, can she?”
  • [O]ur selective incorporation doctrine under the Due Process Clause does suggest that there are some rights that were fundamental enough to be incorporated and some that are fundamental, but not fundamental enough to be incorporated. We have drawn a line. Is it the ordered liberty concept alone in our jurisprudence that you are relying upon, or is it any other articulation of our incorporation doctrine that supports your view?
  • Justice Kennedy, Coy Finder of Fundamental Rights:
  • What are these other unenumerated rights?
  • Justice Alito, throwback:
  • Well, doesn’t [the PI Clause] include the right to contract?  Isn’t that an unenumerated right?
  • Justice Thomas, silent but scrutable.  He’ll be the only one voting to overturn Slaughter-House and revive the PI Clause.
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  1. Robert Cumberland said, on March 5, 2010 at 11:46 am

    I told you Ginsburg would start bringing up all sorts of foreign laws in an attempt to use them to interpret our constitution. LOL she just can’t help herself.

    So are we back to a 5-4 vote for incorporation via equal protection now? You know, I still think that there is an outside chance that your original prediction, i.e. a larger majority could incorporate via PorI. What if we got 6-3 or 7-2 in favor of incorporation via PorI with Scalia, Breyer, and perhaps one other justice dissenting? I could still see Stevens thinking “well, I didn’t agree with Heller, but if it’s going to be incorporated anyways, might as well get something positive out of all this by getting it done via PorI”. We know Thomas would go along with this, as might Kennedy, Ginsburg (!), Stevens, and Alito. So then all you need is one more to make PorI incorporation the winning opinion, maybe Roberts might actually come on board… despite what he said, I don’t think he was totally critical of PorI, I almost got the feeling that he was playing devil’s advocate.

    • Mike Sacks said, on March 5, 2010 at 12:22 pm

      It’ll be at most 7-2, with Stevens and possibly Sotomayor concurring in part and dissenting in part.

      I see Roberts, Alito, Scalia, and Kennedy incorporating 2A wholesale under SDP.

      I see Thomas concurring in the result to incorporate 2A wholesale under PI.

      I see Stevens incorporating 2A under SDP but dissenting on its scope and arguing for limited incorporation (Stevens kept pushing this at oral argument).

      Ginsburg and Breyer are standing their ground from the Heller dissent.

      Sotomayor may join RBG & SGB, but she’s a wild card: it’s very unclear which way she’d go after oral argument.

      Stevens may, too, join them, but he seemed compelled to go along with Heller because of his respect for stare decisis, even if he disagrees about the breadth of the right’s incorporation to the states.

      So: 5-4, 6-3, or 7-2.


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