Something still isn’t sitting right about the assignments in McDonald v. Chicago. During oral arguments, Chief Justice Roberts and Justice Scalia were ripping apart the Privileges or Immunities Clause with a reckless abandon. Yet, the Plurality, Justice Scalia’s opinion, Steven’s dissent, and Breyer’s dissent spent a mere 270 words on the Privileges or Immunities Clause. How could something so significant, and so potentially damaging–if you take Roberts and Scalia at their face value–be totally ignored in their opinion?

There is a dog that didn’t bark here.

Initially, I thought that the Plurality handled Privileges or Immunities with kids gloves because they were afraid of losing Justice Kennedy.

I could imagine the Court taking this quiet approach if they were trying to keep Justice Thomas from breaking off. But he did just that. Why would Justice Alito be so curt about P or I. If it was so horrible, why not shoot it down. If there is no legitimate basis, why would he merely say that due to the vagaries of the doctrine, and settled precedent, the Court would not disturb precedent. When the Court wants to destroy a doctrine, they do so. See Justice Scalia’s opinion in Stop the Beach.

The wildcard here, of course, is Justice Kennedy. Perhaps he would not join an opinion that rips apart Privileges or Immunities. Maybe in some future case involving liberty–that is not a gun case, but a case involving Kennedy’s favorite forms of personal autonomy and liberty–Kennedy would want to rely on it? Perhaps.

After some more reflection, I don’t think they were worried about losing Justice Kennedy. I think the Chief was afraid of losing Justice Alito? Think about it. If Kennedy threatened to fracture, the Chief would likely give Kennedy the opinion, as he does with so many 5-4 decisions. Kennedy is the author of so many contentious 5-4 opinions. If the Chief does not assign Kennedy the opinion for a 5-4  case, you can expect a classic Kennedy concurrence that significantly limits the holding. Think of his concurrence in Parents Involved. It severely curtailed the Chief’s opinion. The Chief knows this well. Yet here, even though Kennedy did not write the opinion in a tight 4-1-4, he did not concur!

This makes me think that perhaps, Justice Alito was the Justice most likely to fracture off.

How does this sound? The Chief, not wanting to lose another Justice, as Thomas had already concurred in judgment only, decided to give Alito the opinion. As a compromise, the plurality, as well as Scalia’s concurring opinion, would not bash privileges or immunities. This would permit the privileges or immunities clause to live another day.

Using P or I to protect enumerated rights is quite limited. Challenges to grand jury indictments, civil juries, and hell, even quartering of troops are likely to come. But those aren’t sexy and won’t engender much interest. But, the future of the privilege or immunities clause litigation lies in unenumerated rights. Roberts knows this. Scalia knows this. Thomas knows it. And, I contend, Alito knows this.

Indeed, after reviewing transcripts from oral arguments, I am starting to think this makes more sense–specifically with respect to the enforcement of unenumerated rights under the Privileges or Immunities Clause.

MR. GURA: We can’t give a full description of all unenumerated rights that are going to be protected by the Fourteenth Amendment. Either

— JUSTICE SCALIA: It doesn’t trouble you.

MR. GURA: No, it does not, and it shouldn’t trouble the Court because the Court addresses due process cases all the time without saying we’re —

JUSTICE ALITO: Well, does it include the right to contract?

MR. GURA: The right to contract —

JUSTICE ALITO: Isn’t that an unenumerated right?

MR. GURA: That is literally understood by the framers to be an unenumerated right under the privileged immunities. We know that because in the Civil Rights Act of 1866, that’s the very first right that they mentioned as something that people in the South should be enjoying, because they were not allowed to pursue a livelihood.

CHIEF JUSTICE ROBERTS: Your approach — your original approach would give judges a lot more power and flexibility in determining what rights they think are a good idea than they have now with the constraints of the Due Process Clause.

Whether Alito is willing to protect an unenumerated right, like the right to contract, is unclear. But, we can be sure this is on his mind. And his line of questioning was not dismissive, as were the Chief and Scalia.

As Ilya and I argued in our op-ed:

Although Justice Alito did not adopt Justice Thomas’s approach, his opinion took great pains not to reject or criticize it. The plurality simply did not feel the time was right to bring the Privileges or Immunities Clause back into the forefront of constitutional jurisprudence. Due to prudential concerns for precedent, the Court took what it saw was a simpler route instead of revisiting an older debate.

McDonald thus paints a bright picture for the future of constitutional liberty, and opens the door to reviving a long-ignored but powerful provision of our Constitution. Thomas’ clarion call for a liberty-focused originalism provides a step on which to build in future.

I now see Justice Thomas, as well as Justice Alito, as Justices willing to reinvigorate the Privileges or Immunities Clause–if presented with the right case in the future.