The shooting of Representative Gabby Giffords in Arizona this weekend and the flurry of constitutional commentary upon the start of the 112th Congress–including talk of repealing or altering the 14th, 16th, and 17th Amendments and, thanks to Justice Scalia, a renewed call for an Equal Rights Amendment–has led me to think about what would happen if there was a push for a new constitutional amendment that would repeal the Second Amendment (2A). Indeed, just a few of hours ago, Elie Mystal at Above the Law went there. The more I think about it, the more it appears that such a repeal effort would paradoxically lead the most passionate gun rights advocates to embrace the dissenters’ views in Heller and McDonald in ways never anticipated by Justice Stevens et al.
The 2A, literally read, tethers gun ownership to militia membership, however hard the Heller majority tried to convince us otherwise by marginalizing the Amendment’s militia-speak as a “prefatory clause.” Because we had no standing federal army at the time of the 2A’s ratification, and because states formed militias comprised of each state’s able-bodied men, individuals needed the right to own guns in case a tyrannical federal government did raise an army to invade the states.
But if we were to take Sharron Angle’s incendiary and irresponsible “Second Amendment remedies” quip from this summer in a charitably originalist manner, then those remedies mean the right of any people to rise up in revolution against a tyrannical government. This right is explicitly stated in our country’s Declaration of Independence and endorsed by Thomas Jefferson with his quote, “[t]he tree of liberty must be refreshed from time to time with the blood of patriots.” And, unless an American revolutionary wants to wage guerrilla war or commit acts of terrorism, the accepted way to do this is to form militias, armed by individuals exercising their 2A rights, to engage in conventional warfare with the federal government. Of course, just because the right to rise up in revolt exists doesn’t mean the cause is actually righteous or that the federal government cannot seek the perpetuation of its own just existence by putting down the revolt. See, e.g., the Whiskey Rebellion or the Civil War.
Now, it’s currently unimaginable to think of Congress as currently situated ever passing a 2A repeal amendment, let alone finding 38 states willing to ratify it. But if we can get past that hurdle of unimaginability, it’s absolutely imaginable that some states and certainly many individuals would consider Congressional passage of a 2A repeal amendment, whether or not it is ratified, to be a tyrannical act by the federal government that threatens to take away both a fundamental right to bear arms as interpreted by the Supreme Court as well as a mass taking of legally obtained property without just compensation.
And here comes the paradox: anti-repeal states could very well then vindicate liberals’ 2A interpretation by calling up “well-regulated militias” to “secure” their “free states” comprised of individuals who, in joining the militias, are exercising their “right of the people to keep and bear arms.”
In other words, an amendment to take away peoples’ guns could trigger the very scenario, in the eyes of Second Amendment supporters, that the framers imagined in drafting the Second Amendment. In creating that scenario, then, gun owners would throw into relief through actual practice just how unoriginalist Scalia et al. were in their theory supporting the Heller majority.
I believe both components of this scenario–(a) the passage of a repeal amendment in Congress that (b) will trigger the mainstreaming of the militia movement–will never come to pass. As an intellectual exercise, however, it’s worth thinking through possible consequences of our responses to heinous acts such as the one that took place this weekend in Arizona.
If the shooting inspires enough political momentum for Congress to re-up the statutory Federal Assault Weapons Ban and inspire state and local governments to strengthen their gun regulations, then it is worth looking to the Court for how politics has and will influence its shaping of the Second Amendment.
Heller could not have been decided the way it was had it not been for the rise in the last half-century of the “individualist” narrative. Whether or not that narrative constituted “fraud,” as Chief Justice Burger stated from retirement in 1991, it became a tenet of modern conservatism and so mainstream a strain of American political thought that many Democratic politicians–including then-Senator Barack Obama, former Senator Russ Feingold, and Representative Gabby Giffords–supported Heller‘s result. In essence, the conservative majority in Heller may have inflamed the half of the public rooting for the “collectivist”–or militia-based–interpretation, but the political winds had pushed the Court’s decision into safe harbor.
Had the liberal dissent prevailed in Heller, the country would have had a massive administrability problem that could have quickly descended into political chaos and violence. Who gets to keep his or her guns? What guns remain protected? Can the federal government, finding militias anachronistic, ban guns altogether throughout the country?
While the Heller decision is often rightly explained in ideological terms, it still got the pragmatics right: it relieved the country of its polarized, zero-sum politics over gun rights on the side of least ideological and practical resistance, while defining the right so narrowly as to leave for later cases the true scope of reasonable regulations of the individual right to keep and bear arms for self-defense.
It remains easy to imagine that a Democratic nominee to Justices Kennedy’s or Scalia’s seat could lead to a reversal of Heller or so broad an acceptance of reasonable regulations as to limit Heller to its specific facts. But now that this country’s steady stream of massacres has finally flooded into Congress and the Judiciary with the shooting of Rep. Giffords and the slaying of Chief Judge John Roll, perhaps the Court as presently constituted will be inspired by Justice Breyer’s Heller dissent to look more kindly upon state, local, and federal gun regulations than they would have had such violence remained for them a political and legal abstraction.
UPDATE: Josh Blackman responds.
UPDATE II: Michael Doyle of McClatchy has an article headlined, “Arizona shootings unlikely to change federal gun laws.” (h/t How Appealing)
UPDATE III: Jo Becker & Michael Luo of the New York Times posit Tucson’s gun culture against federal regulatory efforts.
Back home for a shower and a suit-up. A few thoughts:
- How wonderful it is to come home sweating rather than freezing.
- The fifth person in line was the Phantom First from McDonald – the oral argument was on a Tuesday, but he arrived at 7am on the Sunday prior. I discovered him that day while I was on an afternoon run with the First Lady of First One @ One First. Later that evening, I went back to talk to him. Once there, another two people showed up to scope out the line. The Phantom First was packing his things up after a day in the cold when he realized that his brother, for whom he was keeping a second seat in line, was not coming. He said he’d be back the next morning (Monday) at 4am. I had no interest in competing with that, but the other two were appropriately spooked and got to the Court at 5:30am on Monday morning…with the Phantom First nowhere to be found. Those two–Rob and Larken–became the first ones at One First for McDonald. Last night, then, I was pleased to see the Phantom First return with his brother to claim fourth and fifth in line.
- The best and worst part about this blog is having readers inspired enough to beat me to the Court.
- A largely lawyer/law student crowd this morning, but Dick Heller and Otis McDonald also got in line to see their gun rights cases extended and won, respectively.
- Around 1:30am, we were regaled to some tales, whether true or tall is undetermined, by a man from Noname, Alaska trying to find Union Station. He spoke of white moose and face-licking grizzlies while catcalling the Court police officer on duty.
Gotta get moving to get back to the Court on time for Stevens’s last day and the final four decisions. I’ll have something more expository about the campout and the decisions later tonight or tomorrow.
Until then, enjoy my 12:30pm liveblog of the Elena Kagan hearings!
On Monday night, Dick Anthony Heller, the named plaintiff in the landmark Second Amendment case D.C. v. Heller, dropped by to spread good cheer to the line with cough drops and autographed leaflets. At one point, he even blessed my own chair with his presence!
Here he is giving an impromptu civics lesson on Women & Guns to Monta Vista High School students from Cupertino, CA:
Come the morning, Mr. Heller reappeared…at the front of the line.
One can’t blame Heller for expecting our goodwill: after all, McDonald was the sequel to the case that made him a gun rights hero. Nevertheless, no amount of autographs, cough drops, or civics lessons could substitute for the front of the line’s hard-won right to keep and bear single-digit placeholders. Moments later, he respectfully stood down.
More SCSW spots coming soon.
My report from line is now live at the ABA Journal:
The line doesn’t lie.
By 4 p.m. on Heller Eve two years ago, forty people stood in line along One First Street. At the same time this past Monday, the day before oral arguments in Heller’s sequel, McDonald v. City of Chicago, there were only seven of us.
As the sun set over the Supreme Court, we wondered why the line wasn’t longer; after all, this was the case that would resurrect the Privileges or Immunities Clause of the Fourteenth Amendment and introduce a new constitutional order for all fundamental rights! Nevermind where all the gun nuts were—where were all the abortion warriors, railroad robber barons, education rights revolutionaries, and health care socialists?
But the line doesn’t lie. We were just too wrapped up in McDonald’s hype to listen. This was going to be a simple incorporation case. [...]
But none of this is to say that McDonald’s twenty-four hour line was not extraordinary in its own right.
Read the rest here.
And if you haven’t yet read the NYT’s story from the McDonald line, you may do so here.
My write-up of this morning’s oral argument in McDonald v. City of Chicago is now live at ABA Journal:
In McDonald v. City of Chicago, the Supreme Court made clear that the penalty for constitutional grave-digging is death by firing squad. [...]
The big question going into today’s argument was not whether the justices would incorporate the Second Amendment—the Heller Five were guaranteed to do so—but rather how they would incorporate.
This is where it got bloody for Alan Gura, petitioners’ lead counsel and Heller’s victorious advocate.
Read the rest here.
Just got home from nearly 24 hours out on the pavement. The company was wonderful all night and the line got mega-long come daybreak.
Despite my pout above, I am honored to claim Third One @ One First behind Rob and Larken. They flew out from Malibu, CA, to see McDonald and hit the concrete at 5:30am yesterday. Champions, both of them!
A few notes:
- Look for Adam Liptak of the NYT to scoop my vox populi column tonight or tomorrow. He came out last night and this morning to cover F1@1F and the line experience more generally.
- There were far fewer gun rights supporters in line than I expected. I deeply enjoyed getting to know those who were there, however.
- Huge thanks to ABA Journal for buying the line pizza last night!
- Thanks to Josh Blackman for teaming up with me to deliver some fun overnight coverage. Check out joshblackman.com for some more video and commentary.
- Dick Heller came out to entertain the linegoers last night and this morning. He was especially a hit among the fifteen high schoolers from Cupertino, CA, that braved the cold overnight wait.
- Predictions for McDonald are all over the place, from 5-4 to 9-0. The only thing everyone agrees upon is that the Second Amendment will be incorporated against the states.
- Finally, I think I got the makings of the first Supreme Court Side Walk episode. I hope to have it up here in some fashion by the week’s end.
Time to dethaw, get clean, suit up, and head back out.
Tomorrow morning, the Court hears McDonald v. City of Chicago, which asks whether the Second Amendment’s individual right to keep and bear arms is incorporated against the states through the Privileges or Immunities Clause or the Due Process Clause of the Fourteenth Amendment.
In other words, the 2010 Court may exhume the PI Clause, which the 1873 Court in The Slaughter-House Cases buried five years after the Reconstruction Congress ratified the Fourteenth Amendment. The Amendment’s Radical Republican framers, argues McDonald‘s lead counsel Alan Gura, intended for the PI Clause to protect American citizens’ fundamental rights both enumerated and unenumerated by the Constitution.
As such, F1@1F will be going all-in with McDonald for the next few days. All-in for a gun case, of course, requires more than most cases. Much more.
It’s going to be crazy out there. If I’m not first, at least I’ll get some great interviews with interesting people. Here’s what to expect:
- Keep an eye on F1@1F for photos and quick tweets.
- By Tuesday night, I hope to have my oral argument report up at ABA Journal, followed on Wednesday by my vox populi column.
- If I get enough people willing to go on camera, then I’ll have the first episode of Supreme Court Side Walk up here by Friday.
- Until then, give the case’s SCOTUSWiki page a look, especially the most recent media links towards the bottom.
Come on by today or tonight if you’re in town, and bring me some pizza while you’re at it. I’ll be the cold and hungry one without the gun.
…on second thought, bring enough pizza for everyone.
Thanks to Professor Randy Barnett for the VC shout. I just finished reading the first part of his book-to-be, Fundamental Rights in the Constitution and very much enjoyed his exploration of the Ninth Amendment‘s original public meaning.
Also, over the weekend, Professor Orin Kerr, another prominent Conspirator, suggested that I supply some information on how early one must arrive in line at the Court to get a decent chance of getting inside to hear an argument. Here are my preliminary thoughts:
- Be Before 50th: The Court reserves at least fifty seats for the general admission line.
- The “Dogs”: From my experience, if you get in line between 7 and 8 for the “dogs”–the technical cases without any newspaper coverage–you’ll get in. By “experience,” I mean the first oral argument I ever attended, Danforth v. Minnnesota, for which my father and I got in line around 8am, received numbers around 50, and were among the final ones seated inside the Court. Of course, despite no major awareness of Danforth in the news or general public, the case, like all SCOTUS cases, was still massively important for its area of law. Indeed, Prof. Kerr noted Danforth‘s major legal importance for criminal law and procedure over at VC in November 2007. This week’s cases, as far as I can tell, haven’t touched any public nerve, so I am taking this week off from the line. I leave it up to the Klingensmiths to tell me otherwise. Still, keep your eyes trained on F1@1F at the 10am hour should Wednesday see the release of Citizens United.
- The “Mid-Majors”: Get in line by 6am. Last week’s cases exemplify the “mid-major” cases: issues that attract the public’s attention without creating a frenzy. Briscoe mattered not as much for its subject matter, but rather for Sotomayor’s centrality in the fate of a year-old precedent. Comstock dealt with sex offenders (and, of course, the scope of the Necessary & Proper Clause of the Constitution), who are always interesting subject matter. American Needle fought against the NFL, which sounds cool regardless of the more mind-numbing aspects of antitrust law that really animated the case.
- The “Blockbusters”: Get in line before 4am…and that probably won’t be good enough. I got in line for the rehearing of Citizens United, also Justice Sotomayor’s first oral argument, at 11pm, thinking that there would already be a line at least a dozen people long. There wasn’t. I was first. The next batch of people didn’t show up until 3:45am. That said, for the super-blockbusters, prepare to eat your previous night’s dinner on the First Street sidewalk: friends of mine got in line at 4:30pm on Heller‘s Eve…they were around 40th. This term’s blockbusters–McDonald, Kiyemba, Christian Legal Society, Doe v. Reed–will likely draw its earliest linegoers at varying hours of which I am not yet qualified to predict.
Once again, thank you for coming by F1@1F. Although I will not be reporting from line this week, I will endeavor to keep the content flowing!
As F1@1F weekend reading, I am posting below a longer piece–previewed in my first post–that I wrote in early December on the Roberts Court’s seemingly “post-partisan” posture in this new Obama era.
This hypothesis is by no means proven – it is merely culled from observations about the Court’s docket this term as related to its decisions of the previous three terms. The hypothesis’s true test will come as the Court continues to hand down its decisions.
Please keep your disagreements civil in the comments and keep coming back to F1@1F as the term goes on for follow-up analysis.
Every year, the Supreme Court hears several cases that inflame public passions, prompting Americans to line up on opposite sides of predictable partisan divides. The Court from Reagan to Bush II could be counted on to divide 5-4 on most any politically salient subjects such as abortion, affirmative action, separation of church and state, right to die, gay rights, and even the outcome of a Presidential election. Under the Roberts Court, the American public has come to expect the predictable configuration of justices on hot-button issues: Roberts, Alito, Thomas, and Scalia on the Right; Stevens, Ginsburg, Breyer, Souter (and now, presumably, Sotomayor) on the Left; and Kennedy going to whichever side his peculiar vision of individual liberties happens to fall.
Yet a funny thing happened on the way to the Obama era: the Court seems to be flirting with post-partisanship. When Chief Justice Roberts stood on the Capitol steps, his fellow justices bundled up behind him, and administered the Oath of Office to Obama, they overlooked the National Mall crammed with more than million freezing onlookers. The two representatives of their respective branches worked in concert, but not without momentarily tripping over each other’s words. That scene may prove to be a metaphor for the interaction between our current political and judicial branches.
In the summer of 2007, at the end of the Roberts Court’s first term with both Bush II appointees on the bench, Justice Breyer seethed that “[i]t is not often in the law that so few have so quickly changed so much.” The Supreme Court had taken an aggressively rightward tack on abortion, student speech, school desegregation, gender discrimination, and campaign finance, enabled by the replacement of arch-moderate Justice O’Connor with the solidly conservative Justice Alito, and given political cover by a sympathetic President and Congress.
The following year found the two wings similarly uncompromising, going tit-for-tat over the war on terror and gun rights, as if to imitate the dynamics between the newly elected Democratic Congress and the legacy-seeking Republican Executive. In Boumediene v. Bush, Justice Kennedy swung into the liberal camp to pen its final victory over the Bush administration’s detentions and prosecutions of enemy combatants held in Guantanamo. Justice Scalia, in a vituperative dissent, warned that the five-member majority’s decision to grant habeas corpus rights to Guantanamo detainees “will almost certainly cause more Americans to be killed.”
Two weeks later, Scalia triumphantly announced the majority opinion in District of Columbia v. Heller, in which Kennedy provided the fifth conservative vote, striking down D.C.’s handgun ban by defining the Second Amendment as securing an individual right to keep and bear arms. Justice Stevens, writing on behalf of the four liberals, condemned the majority as the very opposite of “genuine” judicial conservatives: results-driven activists. Indeed, some Court watchers wondered how the dissenters resisted using Scalia’s inflammatory words in Boumediene against him in their argument for the importance of the myriad gun control laws Heller now called into question.
Fast-forward to this term, which officially began on Monday, October 5. Although the Court has yet to release any decisions, the high profile cases on its docket reflect the promises and pitfalls of the Obama era’s post-partisan rhetoric. The Democratic Party, now controlling Congress and the Presidency, is struggling to reconcile the realities of big-tent governance with the demands of competing grassroots ideals. Meanwhile, United States v. Stevens, which the Court heard in early October, pits liberal values against liberal values in a contest between free expression and animal rights. And as the Republicans decide which bits of right-wing ideology to embrace or reject as they rebuild from the rubble of 2008, conservative concerns collided at the Court in early December’s Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, when the Court considered whether to abandon principles of federalism in favor of property rights. Finally, Obama’s overtures to his opponents in pursuing his agenda have their analogue in the Court’s blockbuster of the term: McDonald v. City of Chicago may very well result in a political quid pro quo in which the conservative Heller majority can extend its interpretation of the Second Amendment to the states by breathing new life into a clause of the Fourteenth Amendment that could strengthen constitutional protection for liberal causes.
Of course, these three cases may not be so indicative of a new day rising at the Court. Justice Kennedy’s vote remains the putative fifth vote in Graham v. Florida and Sullivan v. Florida, which questions whether the life imprisonment without parole of a juvenile for a non-homicidal crime violates the constitution’s ban on cruel and unusual punishment, and in Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, which could find the Sarbanes-Oxley Act’s creation of the PCAOB in violation of separation of powers principles.
However, whereas recent history augurs a Kennedy-penned liberal win in Graham and Sullivan, the Court showed only last term in Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al. (NAMUDNO) that it is willing to stop short of the type of ideologically-driven holding that Free Enterprise could bring. When the Court agreed to hear NAMUDNO, political liberals quivered in fear. At issue was the constitutionality of Congress’s 2002 vote to extend for another twenty-five years Section Five of the Voting Rights Act of 1965, which required districts with histories of voting rights violations to obtain “preclearance” from the Justice Department for any changes in a covered district’s election procedures. NAMUDNO presented the conservative justices with its most sweeping opportunity yet to declare the work of the Civil Rights era complete and more fully institute colorblind law. This was, after all, the same Roberts Court that closed its 2006 term with a 5-4 decision that cited Brown v. Board of Education, the legendary case from 1954 that struck down public school segregation, to hold unconstitutional voluntary, race-conscious public school re-integration programs.
Yet the Court shocked observers when it handed down an 8-1 decision upholding Section Five’s constitutionality. Chief Justice Roberts, the same man who three years earlier refused a remedy for de facto segregation by stating that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” stopped short in his NAMUDNO decision from judicially willing this country’s history of racial discrimination into obsolescence. Indeed, faced with the magnitude of exercising judicial review—the most powerful tool the Supreme Court wields over its co-equal branches—against a landmark Act of Congress, the conservatives blinked. Roberts corralled the conservatives and the liberals under his narrow holding while dispatching Justice Thomas to argue in dissent what ostensibly would have been the conservative majority opinion had Roberts not pulled his right-leaning brethren back from the brink of a certain political firestorm.
But why did the justices determine that NAMUDNO, which roared into the Court’s docket like a lion, should go out like a lamb? After all, Roberts seldom before let his oft-professed ideal to guide the Court towards broad consensus and narrow holdings take precedence over his demonstrated commitment to conservative ideology. The Court, however, is not deaf to public opinion. The term began with a Republican President and a Democratic majority in Congress; the term ended with a Democratic President and a Democratic supermajority in Congress. Roberts was well aware that the last Court that mounted active resistance to the dominant political will of the American people and their representatives in government now rests in historical infamy.
In order to further a conservative agenda alongside a Democratic executive and legislature, the Court must jealously protect its legitimacy. The early Roberts Court’s halcyon days of Republican political dominance is over: the conservative bloc, when Justice Kennedy agrees with them, must pick their battles carefully. That certainly seemed to be their strategy for last term’s potential conservative victories: by balking on NAMUDNO, the Court had enough political capital for a smaller victory in Ricci v. DeStefano, in which the five-member majority held that New Haven discriminated against white firefighters when the city threw out the results of a promotion exam in which disproportionally less black firefighters qualified. Meanwhile, as if to tell the liberal wing not to get too optimistic over the NAMUDNO compromise, the Court ordered reargument in Citizens United v. Federal Election Commission and presented a new question to the parties that suggested that the conservatives were itching to invalidate federal election laws limiting corporate expenditures during Presidential and Congressional campaigns.
The Court’s decision to schedule a rare September hearing for Citizens United made strategic sense for the Court’s conservative wing in a manner that mirrors President Obama’s own sly “post-partisanship.” Just as the Right does not trust Obama’s overtures as he pursues even moderately liberal policies, neither should the Left be lulled by NAMUDNO or the absence on this term’s official docket of politically resonant Left vs. Right cases that the conservatives are likely to win. Indeed, even the potential partisan 5-4 cases are muted: juveniles sentenced to life without parole is hardly as galvanizing as challenges to the death penalty, and claims against administrative agencies do not have the same explosiveness as clashes between Congress and the President. By placing Citizens United among this term’s cases, the Court, intentionally or not, now possesses the political capital where none existed last term for the conservative majority to open the floodgates for corporate cash in campaigns.
Nevertheless, even if our executive and judicial branches are deploying post-partisan strategy for ideological gain, the strategy significantly slows the traumatic political polarization that would—and did—occur when the branches enable or antagonize the other’s agenda without restraint. I hope to test this hypothesis as the decisions come down this term and beyond…that is, until the Gay Marriage case hits the Supreme Court. Then it’s back to judicial politics as usual.
My name is Mike Sacks. I am a third-year law student at Georgetown interested in legal journalism and the intersection of law and politics. This semester, I have no morning classes. As such, I will be taking advantage of living only minutes from the Supreme Court to pursue a rather unorthodox extracurricular activity: reporting from the Court as the first one in line at One First Street.
For every politically salient case from January through April, I will attempt to be at the head of the general admission line. This is no mean feat: for the September rehearing of Citizens United v. FEC–also Justice Sotomayor’s first appearance on the Bench–much of the line started forming around 4am. How do I know this? Because I claimed my first ever “First One @ One First” ticket by spreading my blanket on the sidewalk at 11pm the previous night.
As a Duke University graduate, I should have ample camping-out experience. But in my four years as an undergraduate, I actively sought to–and succeeded in–securing my admission into the Duke-UNC games without once suffering through wintry nights in a flimsy tent perched on the soggy soil of Krzyzewskiville. Indeed, as a former “Nina Totintern,” I once enjoyed a similar evasion of the elements at the Supreme Court. But those halcyon days of press-passed entrances are over. Now I must rough it.
Camping out at the Court in winter’s nadir will not be easy. Tents are forbidden. The concrete sidewalk makes for an unforgiving bed. Sprinklers spring up in the still of the night. Challenging climate be damned, however; when the next person arrives, excited to be first, he or she will find me, with my cracked lips and frozen fingers, sardonically asking how it feels to be second and seriously inquiring why he or she is crazy enough to get in line so early.
And that question–”why are you here?”–is what I set out to explore. Every Supreme Court reporter tells us what goes on inside the Court at argument and in its opinions. Every Supreme Court reporter gets insight and analysis from expert academics and practitioners. Sometimes Supreme Court reporters even interview a party in the case to expose the human element often lost in the rarefied air of high court’s legal abstraction. But no Supreme Court reporters ever ask the Courtroom’s spectators why they have congregated inside the Temple of our Civil Religion.
Our citizenry who have come to witness the Court first-hand surely have something to say, whether when waiting in line before the Court opens or spilling out onto the steps after the Chief Justice’s gavel bangs closed the day’s session. Perhaps no one ever asks them because our judiciary is supposed to function independent of public passions. But only the most dogmatic adherents to the mythology of an insulated Court will maintain that our Third Branch is apolitical. Look to the anti-abortion protesters who spend every day standing silent in front of the Court or the grandstanding Senators asking stonewalling judicial nominees for their views on the day’s hot-button political issues. Look at the Court’s history in matters of race, sex, Presidential power,economic policy, law enforcement, sexual orientation, to name only a handful, to find the Court inexorably intertwined with the era’s political climate. Look even at the Court itself: justices are labeled for their fidelity to liberalism or conservatism, however epochally defined.
The Court is responsive to politics. Consequentially, the vox populi should matter for those interested in the Court. What does the person in line at 5am hope to see in this case? Why is the family that shows up at 9am hoping to get in? How many of those waiting for the doors to open are lawyers invested in the litigation or legal issues at play or professionals or citizens who will be impacted by how the Court may rule? How many people exiting the Court even understood what they just saw and heard? Do they care or were they just there to be there? All of these people represent the American public. How they vote is impacted by how they perceive our country’s system of governance. Their experience with the Court–whether from the position of knowledge or ignorance, veneration or cynicism, all of the above, or somewhere in between–helps shape our political dialogue that informs who we elect to represent us in the Executive and Legislative Branches. These branches, in turn, shape the judiciary through nominations and confirmations; and the judiciary, thus shaped, passes judgment on the political choices made by earlier–and sometimes contemporary–Presidents and Congresses.
Accordingly, my other aim for this project is to test my hypothesis that the Roberts Court has been quite responsive to its surrounding, and shifting, political climate. I have a forthcoming piece detailing my thoughts, but I will preview my evidence:
- During the 2006-07 term, the first full term in which both Chief Justice Roberts and Justice Alito served together, Republicans controlled the White House and both chambers of Congress. Meanwhile, the Roberts Court aggressively pushed rightward on abortion, student speech, school desegregation, gender discrimination, and campaign finance.
- The Court’s 2007-08 term proceeded alongside a divided government with a Republican President and Democratic majorities in the House and Senate. The Court reflected the division: President Bush, seeking a legacy, saw a conservative interpretation of the Second Amendment win out in Heller; the Democratic Congress, elected in a wave of anti-war sentiment, found its hostility to Bush’s war on terror policies reflected in the Court’s granting habeas corpus rights to Guantanamo detainees in Boumediene.
- Last term, which straddled the Bush and Obama presidencies, found the Court taking a blockbuster case in in September 2008 that threatened to invalidate a key civil rights provision of the Voting Rights Act of 1965, but pulled back with an 8-1 decision in June 2009 upholding the provision.
- This term, the first one fully operating alongside a Democratic Presidency and Congress, is progressing in an almost post-partisan fashion, as if the conservative Court has taken to heart President Obama’s overtures to the Right unwelcome among Congressional Republicans. The Court is reckoning with one case that pits liberal values against liberal values, another in which two conservative values clash; further, McDonald v. City of Chicago may result in a grand bargain in which the conservative Heller majority can extend its interpretation of the Second Amendment to the states by breathing new life into a clause of the Fourteenth Amendment that could strengthen constitutional protection for liberal causes. In fact, the only case that threatens a drastic shift to the right in a politically salient issue is Citizens United, the campaing finance case I camped out for in September. And not only is that case officially part of last term, but also the fact that no opinion has come down yet has led some to speculate that it may not be the cut-and-dry 5-4 conservative opinion most expect. But more on that case, and how it fits into my hypothesis, when the decision actually comes down.
Finally, I will use this site to post other thoughts on the Court that I haven’t yet read anywhere else. Given that the legal and political blogs tend to express every possible sentiment existing in this world and parallel universes, these entries will likely be rare and in the shape of wild conjecture. When another site says something I’m thinking, almost always much better than I can express it myself, I will post it here. Further, when another site says something exceedingly compelling that I have not yet thought or I could have never come up with by myself, I will post it here. And if another site says something exceedingly objectionable and I have something to contribute to it, I will post it here.
Thank you for reading. If this introduction has gained your interest–and if you’re this far, I hope it has–please subscribe and share!