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In October, I wrote a post about the fatal conceit of Chief Justice Roberts’s so-called “long game.” In light of the 4-4 split in Freidrichs, this portion of my analysis seems especially timely:

The long long game, however, suffers from a much deeper problem. The notion that a single Chief Justice can single-handedly shape the law over the course of decades, as if he were moving pieces around on a three-dimensional chess set, suffers from what F.A. Hayek referred to as the “fatal conceit.” Our society as a whole is infinitely more complex than any one person could ever possibly understand. It is the “fatal conceit” of central planners that they presuppose enough knowledge to control all aspects of human existence. The notion that Roberts can forge a thirty-year plan—-Stalin only tried for 5 years–to transform the law crumbles on inspection.

The Supreme Court does not exist in a vacuum, where a stasis is maintained. Everything changes. First, and most obviously, the composition of the Court changes. Even if the Chief Justice has a broad vision of what he wants to accomplish, if President Clinton appoints three Justices, all of those plans vanish instantly. His first decade of planning and calculating will be for naught, and the Chief Justice will be in dissent for a generation. Even if a Republican President appoints two or three Justices, there is no way for Roberts to know how they’ll vote. Maybe those Justices will also have a master plan, and will not agree with the Chief’s plan. Or maybe (hopefully not) we will get another Souter or Stevens.

Yes, all of the slow incrementalism that has characterized the Roberts Court presupposes a stasis that is impossible. Had the Court overturned Abood in Harris v. Quinn in 2014, rather than saving the question for another day, Friedrichs would not have mattered. Now, if Justice Garland (or someone likeminded) replaces Justice Scalia, Abood will likely never be overturned.

What about the Chief’s all-important dicta in NFIB about the commerce clause–the so-called saving grace of the saving construction? With Justice Garland on the bench, that language will remain dicta. (Indeed, one of the few dissents Judge Roberts wrote on the D.C. Circuit was in a commerce clause challenge concerning the endangered species act and the “hapless toad”–Judge Garland wrote the panel opinion).

What about the Court’s decision in Fisher I to punt the question, and then grant certiorari again? Well, now we are down to 7 Justices, and it is unlikely any meaningful majority opinion could be reached. The decision not to reach the merits the first go-round, and to kick the can down the road, means the can will stay on the road.

What about the Second Amendment? The Court consistently denied certiorari on every conceivable Second Amendment case, even while the 5 members of the Heller and McDonald Courts were still around. Now, with a Justice Garland (who would have voted to rehear Parker, the D.C. handgun case), Heller is on precarious grounds–perhaps not of outright reversal, but of limiting it to its facts to make it a dead letter.

I could go on, but you get the gist. To the extent that the Chief had any sort of long game, that would be accomplished by slow, incremental decisions, those plans may never go to fruition. The best laid schemes o’ mice an’ men, go oft awry.

Luis v. United States considered whether the government’s freezing of a persons assets–preventing him from affording an attorney–violates the 6th Amendment’s right of counsel. The final breakdown was 5-3, however there was no opinion that commanded five votes. Justice Breyer wrote for the Chief, and Justices Ginsburg and Sotomayor. Justice Thomas concurred in judgment. There were dissents by Justice Kennedy joined by Justice Alito, and a (rare) solo dissent by Justice Kagan.

In this post I want to highlight one aspect of Justice Thomas’s concurring opinion. He explained that the government cannot prohibit certain acts that are necessary to the exercise of constitutional rights. I have written that the right to keep and bear arms is necessarily preceded by a right to make or acquire arms–preventing access to arms makes the right to keep arms a nullity. Thomas makes a similar point concerning the right to access ammunition, or the right to access firearm training. Consider this analysis:

The law has long recognized that the “[a]uthorization of an act also authorizes a neces- sary predicate act.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 192 (2012) (discussing the “predicate-act canon”). As Thomas Cooley put it with respect to Government powers, “where a general power is conferred or duty enjoined, every particular power neces- sary for the exercise of the one, or the performance of the other, is also conferred.” Constitutional Limitations 63 (1868); see 1 J. Kent, Commentaries on American Law 464 (13th ed. 1884) (“[W]henever a power is given by a statute, everything necessary to the making of it effectual or req- uisite to attain the end is implied”). This logic equally applies to individual rights. After all, many rights are powers reserved to the People rather than delegated to the Government. Cf. U. S. Const., Amdt. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”).

Constitutional rights thus implicitly protect those closely related acts necessary to their exercise. “There comes a point . . . at which the regulation of action intimately and unavoidably connected with [a right] is a regulation of [the right] itself.” Hill v. Colorado, 530 U. S. 703, 745 (2000) (Scalia, J., dissenting). The right to keep and bear arms, for example, “implies a corresponding right to obtain the bullets necessary to use them,” Jackson v. City and County of San Francisco, 746 F. 3d 953, 967 (CA9 2014) (inter- nal quotation marks omitted), and “to acquire and main- tain proficiency in their use,” Ezell v. Chicago, 651 F. 3d 684, 704 (CA7 2011). See District of Columbia v. Heller, 554 U. S. 570, 617–618 (2008) (citing T. Cooley, General Principles of Constitutional Law 271 (2d ed. 1891) (dis- cussing the implicit right to train with weapons)); United States v. Miller, 307 U. S. 174, 180 (1939) (citing 1 H. Osgood, The American Colonies in the 17th Century 499 (1904) (discussing the implicit right to possess ammuni- tion)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discuss- ing both rights). Without protection for these closely related rights, the Second Amendment would be toothless. Likewise, the First Amendment “right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exer- cise.” McConnell v. Federal Election Comm’n, 540 U. S. 93, 252 (2003) (Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part).

I would also highlight Thomas’s vigorous refutation of judicial balancing tests, with citations to Heller and Crawford:

As discussed, a pretrial freeze of untainted assets infringes that right. This conclusion leaves no room for balancing. Moreover, I have no idea whether, “compared to the right to counsel of choice,” the Government’s inter- ests in securing forfeiture and restitution lie “further from the heart of a fair, effective criminal justice system.” Ante, at 12. Judges are not well suited to strike the right “bal- ance” between those incommensurable interests. Nor do I think it is our role to do so. The People, through ratifica- tion, have already weighed the policy tradeoffs that consti- tutional rights entail. See Heller, 554 U. S., at 634–635. Those tradeoffs are thus not for us to reevaluate. “The very enumeration of the right” to counsel of choice denies us “the power to decide . . . whether the right is really worth insisting upon.” Id., at 634. Such judicial balancing “do[es] violence” to the constitutional design. Crawford v. Washington, 541 U. S. 36, 67–68 (2004). And it is out of step with our interpretive tradition. See Aleinikoff, Con- stitutional Law in the Age of Balancing, 96 Yale L. J. 943, 949–952 (1987) (noting that balancing did not appear in the Court’s constitutional analysis until the mid-20th century).

The plurality’s balancing analysis also casts doubt on the constitutionality of incidental burdens on the right to counsel. For the most part, the Court’s precedents hold that a generally applicable law placing only an incidental burden on a constitutional right does not violate that right. See R. A. V. v. St. Paul, 505 U. S. 377, 389–390 (1992) (explaining that content-neutral laws do not violate the First Amendment simply because they incidentally burden expressive conduct); Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 878–882 (1990) (likewise for religion-neutral laws that burden religious exercise).

I do love reading solo opinions from Justice Thomas. There is always so much to think about, and so many points the majority (plurality here) can’t even attempt to respond to.

The lecture notes are here.

Race & Gender Discrimination

• Loving v. Virginia (1373-1379).
• Sex Discrimination (1407).
• Craig v. Boren (1407-1416).
• United States v. Virgnia (1416-1424).
• Beyond Race and Sex (1425-1428).
• “Fundamental Interests” (1441-1443).

Loving v. Virginia

Here are Mildred Delores Loving (nee Jeter)  and Richard Perry Loving. They had three children, Donald, Peggy, and Sidney.

Here is a video of a documentary about their case.

Reed v. Reed

The home of Sally Reed, the eponymous plaintiff of Reed v. Reed, in Boise, Idaho, bears this plaque.

It reads, in part:

Sally Reed lived here. Idaho and the Nation owes a lot to Sally Reed, who, though an unlikely hero, blazed a trail nationally for women’s rights with a 1971 U.S. Supreme Court victory. Sally lived in a two-story wood frame home from 1935 until 1999. After her divorce in 1958, from Cecil R. Reed, Sally made a modest living for herself and her son Richard, by caring for sick and disabled veterans in her own home. Skip’s death in 1967 led to competing petitions’ to administer his small estate. Idaho law at the time said in such cases “the male must be preferred over the female.”

Though she never sought the spotlight and didn’t realize the widespread significance of what she was doing, Sally’s basic instincts for right and wrong moved her to challenge this discriminatory law all the way to the U.S> Supreme Court, with the help of .  . . now U.S. Supreme Court Justice Ruth Bader Ginsburg, then a Rutgers University Law Professor and American Civil Liberties Union Volunteer.

The location at 1682 S Vista Ave in Boise is now an Angler shop.

Courtesy of Nick Korte.

Craig v. Boren

Here is a photograph take in 1996 on the 20th anniversary of Craig v. Boren.

 This is the Honk-N-Holler Grocery store, where the light-beer was sold.

(Courtesy of Clare Cushman)

United States v. Virginia

This is the Virginia Military Institute.

Here are some of the first female cadets that graduated from VMI.

And here is Ruth Bader Ginsburg, also known as the Notorious R.B.G. (Yes, there is a tumblr)

And here is a picture of Scalia and Ginsburg riding an elephant in India.

One of my first blog posts in October 2009, immediately after I passed the Virginia Bar, started a count-down till my eligibility for admission to the Supreme Court Bar. In that post, I wrote, “I am seriously considering skipping the swearing ceremony in Richmond, but I will not miss my debut at 1 First St. NE.” I indeed did skip the swearing ceremony in Richmond, which, alas delayed my SCOTUS bar-admission.

As I noted in a December 2012 post, in order to be eligible for the bar of the Supreme Court of the United States, I had to first be a member of the Supreme Court of Virginia for three years. In one of the quirks of the Old Dominion, being a member of the Virginia Bar is separate and apart from being a member of the Commonwealth’s highest court. So in December 2012, I was (finally) sworn into the Supreme Court of Virginia Bar in a ceremony in Richmond. That started the ultimate three year clock, which allowed me to (finally) apply for the SCOTUS bar in December 2015. (And if you are curious, I mailed in my application on the exact date I was allowed to). Randy Barnett and Ilya Shapiro were my two sponsors.

The swearing in, or as I call it, my SCOTUS Cotillion, took less time than the Texas Dip. The Chief Justice called on Ilya to read a prepared script. Once Ilya said my name, I stood up. The Chief then granted the motion, and I sat down. After all of the motions for admission were granted, the Chief asked us to stand again. The Clerk administered the oath while holding a Bible. I said “I do.” And then sat down. It happens really fast. I could’ve sworn Justice Kagan smiled at me when Roberts said my name, but it could have been a hallucination from the Frozen Yogurt in the cafeteria.

But now it’s over, and I am a member of the Bar. What does this get me? I can now use the Bar line, and leave my stuff in the lawyer’s lounge, rather than frantically searching for quarters.

Thankfully, I was able to schedule my swearing-in for the same day as Zubik v. Burwell, which gave me a guaranteed seat about 3 feet from the Petitioner’s counsel table. I was so close I could see Paul Clement’s zen-like aura as he prepared for arguments. I was also sitting immediately adjacent to the press section, a few feet from Nina Totenberg as she kibitzed about her recent interview with POTUS. Lyle Denniston, who relishes in ribbing me for my age, asked if they let 18-year-olds enter the Bar. Though, there was one downside to being up front. I was so close to the bench that I could not see Justice Ginsburg unless I sat up high in my chair. During arguments, I could only hear a disembodied voice. It is still jarring to see the Bench without Justice Scalia up there. Especially during today’s arguments, I really missed his presence.

Update: And, as proof that I was at the Court, I made the official Art Lien sketch. I am in the first row, second from the left.

ACA contraception arguments, Paul Clement at lectern for petitioners.

And Mark Walsh noted it in his View from the Court:

As usual, bar admissions are the first order of the day, and today’s admittees include a member of Congress, Rep. Keith Rothfus, a Republican from Pennsylvania. His presence may be explained by the fact that he is from the Pittsburgh area and has a law degree from the University of Notre Dame, which had challenged the contraceptive mandate in an earlier case. He also gets a really good, front-row seat in the bar section.

Seated with Rep. Rothfus is Rep. Louie Gohmert, Republican of Texas, who is not being sworn in today but, oddly, is in the section with those who are.

Barely a half-hour into the argument, a Court aide will inform Rothfus that there is a pending vote for which is presence is sought, and he will depart. Rep. Gohmert does not leave.

Also being sworn into the Supreme Court Bar today is Josh Blackman, an associate law professor at South Texas College of Law in Houston, and a frequent commentator on the work of the Court, particularly on the Affordable Care Act cases. (And his blog points out that today is the sixth anniversary of the day the president signed the ACA into law.)

I blogged earlier today about the Court’s terse, five-paragraph per curiam decision in Caetano v. Massachusetts, the Second Amendment stun-gun case.  Well, I called it terse. Justice Alito, joined by Justice Thomas, called it “grudging.” With good reason too. While the Per Curiam decision goes out of its way to say as little as linguistically possible to rebuke the Massachusetts Supreme Judicial Court, Justice Alito opens fire with both barrels.

First, Alito describes the sad facts of this case. Caetano was not some sort of hardened criminal, but was a battered girlfriend, who used a stun gun (commonly known as a Taser) to defend herself against her abusive boyfriend. Rather than killing the father of her children, she used the Taser to successfully ward him off. (This is why, I suspect, the record was requested). But now, after her conviction will almost certainly be upheld on remand under some sort of wishy-washy intermediate scrutiny, Caetano will forever be barred from owning any weapon for self-defense.

Second, Alito rejected the SJC’s “bordering-on-the-frivolous” argument that because stun guns were not in existence in 1791, they were beyond the scope of the Second Amendment. Specifically, he rebuked the lower court for its flawed reliance on (our favorite case of) United States v. Miller:

Instead, the court seized on language, originating inUnited States v. Miller, 307 U. S. 174 (1939), that “ ‘the sorts of weapons protected were those “in common use at the time.” ’ ” 470 Mass., at 778, 26 N. E. 3d, at 692 (quot­ ing Heller, supra, at 627, in turn quoting Miller, supra, at 179). That quotation does not mean, as the court below thought, that only weapons popular in 1789 are covered by the Second Amendment. It simply reflects the reality that the founding-era militia consisted of citizens “who would bring the sorts of lawful weapons that they possessed at home to militia duty,” Heller, 554 U. S., at 627, and that the Second Amendment accordingly guarantees the right to carry weapons “typically possessed by law-abiding citizens for lawful purposes,” id., at 625.

Third, Alito makes clear that most modern weapons–including revolvers and semi-automatic weapons–were not in existence in 1791:

While stun guns were not in existence at the end of the 18th century, the same is true for the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols. Revolvers were virtually unknown until well into the 19th century,4 and semiautomatic pistols were not invented until near the end of that century.5 Electronic stun guns are no more exempt from the Second Amend­ ment’s protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment. Id., at 582 (citing Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and Kyllo v. United States, 533 U. S. 27, 35–36 (2001)). As Heller aptly put it: “We do not inter­ pret constitutional rights that way.” 554 U. S., at 582.

Something about this passage, with the citation to Kyllo and saying Heller “aptly put it” makes me think Scalia wrote it. Maybe, maybe not. But I got a Scalia vibe when I read it.

Fourth, the Court makes clear that “dangerous and unusual” is conjunctive, not disjunctive.

The Supreme Judicial Court’s holding that stun guns may be banned as “dangerous and unusual weapons” fares no better. As the per curiam opinion recognizes, this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual.

Several judges, including Judge Easterbrook, have tried to separate these two, arguing that even if a gun is not unusual, but is dangerous, it is not protected.

Fifth, Alito goes into depth about what makes a gun “dangerous” for purposes of the Second Amendment. It goes without saying that all guns are dangerous. They are designed to quickly and easily inflict a mortal wound. That is their intended purpose.

First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. See Heller, supra, at 627 (contrasting “‘dangerous and unusual weap­ ons’ ” that may be banned with protected “weapons . . . ‘in common use at the time’”).

To Alito, so long as an arm is protected by the Second Amendment, it makes no difference of how dangerous it is. This is an interesting formulation, that I think is helpful. Many of the recent Second Amendment decisions concerning the so-called assault weapon focuses on how much carnage an AR-15 may afflict. But under Alito’s standard, if the AR-15 is protected by the Second Amendment, its lethality is irrelevant. To bolster this point, Alito makes clear that the handgun is the most dangerous gun (in terms of number of lives taken annually), so it would be the gun that ought to be banned–Heller stands for just the opposite.

Sixth, Alito stresses that even though stun guns are not quite as popular as other types of weapons, they are still protected:

While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment.

Finally, Justice Alito offers this parting blow to the Court’s “grudging” per curiam decision.

A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsi­ est of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the conse­ quences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self- defense. See Pet. for Cert. 14.

If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.

To circle back to a point I made earlier today, why did this opinion take so long? It is possible that Justice Scalia began writing the concurring opinion, and his death slowed the process. But even then, that doesn’t explain the GVR. Is it possible the dissent from denial of certiorari pushed the rest of the Court to GVR the case? Because the Mass. SJC basically flouted the Heller decision. Although, frankly, Judge Easterbrook’s decision in the Highland Park case did exactly the same, and dared SCOTUS to overrule him. They did not.