JPS has been on a tear of late, openly criticizing and praising opinions from the Court. Lyle Denniston links to a speech Justice Stevens gave on Tuesday in New York.
In no uncertain terms, Justice Stevens heavily criticizes Justice Scalia’s opinion in McDonald v. Chicago. Scalia, who had for years rejected the notion of substantive due process as mere “babble” accepted it (in his words, acquiesced to it) in McDonald v. Chicago in order to incorporate the Second Amendment to the states. Stevens criticizes Scalia for this double standard.
Stevens repeats his view that Harlan’s opinion in Poe v. Ullman–which he relied on in his McDonald dissent–is one of the Court’s greatest opinions. It is noteworthy that none of the dissenting justices joined Stevens’ opinion.
Against this background, it is clear to me that Justice Harlan would have dissented in two recent cases. The first, McDonald against the City of Chicago, decided that the Second Amendment right to keep and bear arms is enforceable against the States. The main opinion supporting that judgment —unlike Justice Thomas’s scholarly concurrence–rejected the plaintiff’s submission that the Privileges or Immunities clause made the right enforceable. Instead, it relied squarely on the Due Process Clause, and, specifically, substantive due process. Justice Scalia made this celar in the following question at oral argument:
“Why are you asking us to overrule . . . 140 years of prior law, . . . when you can reach your result under substantive due [process] . . . [W]hat you argue is . . . contrary to 140 years of our jurisprudence. 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.”
Justice Scalia’s basic point, I suppose, was that if a 140-year old rule of law is having no adverse effect on society, why not apply a rule of repose that allows an imperfectly reasoned opinion to rest in peace? I think it likely that Justice Harlan would have agreed with such an approach, and I feel rather confident that approach would have led him to conclude that a constitutional amendment that was adopted to protect the States’ rights to determine how best to regulate their militias, and which for over 140 years had imposed no impediment to state regulation of firearms, should not be changed by federal judges.
Steven criticism of Scalia is correct, in part (Stevens is wrong on the merits, as I have written at extended length). Scalia is willing to be an originalist to incorporate the 2nd Amendment, thereby disturbing longstanding practices, but he was somewhat hypocritical to do so through the Due Process Clause–a provision of the Constitution he has scorned for years. Why disturb one precedent he likes (2nd Amendment), but not another precedent he dislikes (Due Process Clause).
Ilya Shapiro and I wrote about this double-standard in great length in two law review articles (here and here), in several Op-Eds (here, here, here, and here), and in numerous blog posts.
Stevens was more amenable to Justice Thomas’ concurring opinion, which he dubbed “scholarly,” for seeking to incorporate the Second Amendment through the Privileges or Immunities Clause.
This speech was largely an indictment of Scalia’s views in McDonald and NASA v. Nelson. He recently criticized Nino’s view in Connick v. Thompson. This, I think, is personal. Let’s see if Scalia strikes back.
Elsewhere, Stevens aimed to compare Justice Harlan II’s “approach to law and views” with those of the “current holder of his seat–Justice Scalia.” Stevens criticizes Scalia’s concurring opinion in Correctional Services Corp. v. Malesko which discounted Harlans view about implied causes of actions under Bivens.
Justice Stevens had kinder words for Justice Alito:
“[Justice Alito’s] preceptive comments about Learned Hand prompted a redraft, and provide me an excuse to express my admiration for Sam’s talk and his work as a Justice.”
Stevens praises Justice Alito’s majority opinion in Nasa v. Nelson, and again criticizes Justice Scalia’s concurring opinion.
The second case is NASA v. Nelson, which held that agency background checks did not violate any constitutional protected employee interest in privacy. If I were still on the Court, I would have joined Justice Alit’s excellent majority opinion without hesitation. Justice Scalia and Justice Thomas refused to do so because, as Justice Scalia argued, the case should have been:
easily resolved on the simple ground that the Due Process Clause does not “guarante[e] certain (unspecified) liberties”; rather, it “merely guarantees certain procedures as a prerequisite to deprivation of liberty.” . . . Respondents make no claim that the State has deprived them of liberty without the requisite procedures, and their due process claim therefore must fail.
Justice Harlan specifically and correctly buried that argument years ago. I congratulate Justice Alito and Chief Justice Roberts for their refusal to resuscitate it now.
JPS is still trying to build bridges.
Justice Stevens spoke about Alito’s writing on the Second Amendment in McDonald with much kinder words than Scalia’s opinion. Stevens, though noted he would have joined Alito’s lone-dissenting opinion in Snyder.
“While I am still convinced that Sam was quite wrong in his writing about the Second Amendment, it might interest you to know that if I were an active justice I would have joined his powerful dissent in the recent case holding that the intentional infliction of severe emotional harm is constitutionally protected speech.