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Professor Krishnakumar has an interesting post at Concurring Opinions analyzing the use of the Rule of Lenity on the Roberts Court:

In their Legislation casebook, William Eskridge, Philip Frickey, and Elizabeth Garrett observe that between 1984 and 2006, the Supreme Court cited the rule of lenity in just over one-fourth of its cases interpreting criminal statutes and agreed with the government’s interpretation in over 60% of those cases. I thought it would be interesting to see how those figures compare to the still-nascent Roberts Court’s cases interpreting criminal statutes.

Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that favored the defendant. In only six of the cases did the Court reference the Rule of Lenity—four times in dissent, one time in both the plurality opinion and the concurring opinion providing the fifth vote, and one time in a concurring opinion alone.

Interestingly, Scalia and Stevens were the Justices most likely to reference the rule of lenity, while Justices Alito and Kennedy have not joined a single case invoking the rule. Krishnakumar concludes that the Roberts Court use of the rule of lenity mirrors the usage during the Rehnquist Court.

Welcome to the first installment of Predictions of the  10^th Justice, brought to you by FantasySCOTUS.net. FantasySCOTUS.net, the Premier Supreme Court Fantasy League, has over 1,300 members, who have made predictions on all cases currently pending before the Supreme Court. In this feature, we analyze these predictions, and try to explain how the Supreme Court will resolve top cases.

The first case we will look at is Citizens United v. Federal Election Commission, commonly known as the Hillary Movie case.

Out of 286 predictions, 192 members (67%) held that the Supreme Court will likely reverse the lower court’s decision regarding the case, and 94 members  (33%) held that the Court will affirm the lower court’s decisions. Next we will explore how the decision vote distributions and how the Justices will vote.

On this bar graph, the 9-0 and 8-1 Affirm splits each garnered less than 5 votes, along with 7-2, 8-1, and 9-0 Reverse. This graph reinforces the predicted outcome from the first chart.  Most members are predicting a 5-4 Reverse, while those predicting an Affirm were more moderately split,  slightly favored a 5-4 splitover a 6-3 split. Overall, the 10^th Justice predicts a 5-4 decision reversing the lower courts holding.

But how will each Justice vote? Predictions, after the jump.

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I am pleased to post on SSRN an article that Ilya Shapiro and I have been working on for some time, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.

This article will be published in Volume 8 of the Georgetown Journal of Law & Public Policy. The article will be published in January 2010, right in time for oral arguments in McDonald v. Chicago.

The abstract reads:

The purpose of this article is to provide a roadmap to welcome the Privileges or Immunities Clause back into our modern constitutional jurisprudence. The Slaughter-House Cases “sapped the [Privileges or Immunities Clause] of any meaning” but the Supreme Court now has the opportunity correct this mistake. Heeding Justice Thomas’s call, we “endeavor to understand what the framers of the Fourteenth Amendment thought” the Privileges or Immunities Clause meant, and seek to restore that original meaning. This framework ensures that the Privileges or Immunities Clause is not manipulated to constitutionalize certain modern “rights” that lack deep roots in our nation’s history and traditions. No, the Constitution cannot be properly read to protect positive rights. Pandora’s box will thus remain sealed.

This article proceeds as follows: In Part I, we discuss the history of the Privileges or Immunities Clause starting with the Articles of Confederation and continuing through the Clause’s untimely demise with the Slaughter-House Cases, its re-emergence in legal scholarship, and its potential rebirth in Supreme Court jurisprudence. In Part II, we discuss the meaning of the Second Amendment as it relates to the states by considering District of Columbia v. Heller and subsequent litigation.

In Part III, we explore the Progressive vision of the Privileges or Immunities Clause as it fits into the “Constitution in 2020” paradigm. This progressive model recognizes rights according to national and international consensus, evolving standards, and the enactment of so-called landmark legislation. We show why privileges or immunities serves as the desired weapon of choice to achieve the “Constitution in 2020” by way of its superiority over Substantive Due Process and Equal Protection. Through the Privileges or Immunities Clause, progressives seek to reconceptualize the provision of education, health care, welfare, and other positive entitlements as inviolable constitutional rights. Thus, Pandora’s Box is cracked ajar, with all manner of governmental guarantees and policy preferences spewing forth.

In Part IV, we contend that the Second Amendment could be incorporated through the Due Process Clause, though this approach is historically deficient. In light of Justice Antonin Scalia’s opinion in Heller, and applying modern selective incorporation jurisprudence, the Court is likely to find that the Second Amendment is “necessary to an Anglo-American regime of ordered liberty” and should thus be extend to the states.

In Part V, we show that, instead of dutifully treating the Second Amendment as it has almost all the other parts of the Bill of Rights, the Court should find the underlying rights to be among the privileges and immunities directly protected by the Fourteenth Amendment. Accordingly, this article is not so much concerned with how the Second Amendment should be incorporated but instead provides the Court a roadmap to protecting the right to keep and bear arms for defense of person and property through the Privileges or Immunities Clause. Indeed, the notion of “incorporation” was anachronistic at the time of the Fourteenth Amendment’s ratification. Historical accounts of the ratification debates reveal that the Privileges or Immunities Clause was meant to protect both more and less than the Bill of Rights. Thus reconceptualized, the clause should be viewed not as a mechanical incorporator of the first eight amendments, but rather as a limitation of the power of the states to infringe certain liberties. In 1868, these liberties were referred to as privileges or immunities.

What are these privileges or immunities, and what relationship do they have to the Second Amendment? To resolve this query we answer Justice Thomas’s call in Saenz, and seek to “understand what the framers of the Fourteenth Amendment thought that it meant.” We propose extending the Glucksberg framework for recognizing substantive rights that are deeply rooted in our nation’s history and traditions to understand how privileges or immunities were understood in 1868. By applying the Glucksberg test and adapting Judge Diarmuid O’Scannlain’s opinion in Nordyke v. King, we find that the right to bear arms for the defense of person and property—independent of its enumeration in the Second Amendment—was considered a privilege or immunity of citizenship in 1868.

Part VI concludes by echoing Justice Thomas and implores originalists not to shy away from the Privileges or Immunities Clause for fear that it will become the camel’s nose of positive rights into the constitutional tent. Instead, resurrecting the Privileges or Immunities clause can continue the process of aligning the original meaning of the Constitution with the protection of our most sacred liberties. This process will also eliminate the “current [state of] disarray” of our Fourteenth Amendment jurisprudence. Failing to take control of the Privileges or Immunities narrative invites an alternative vision of the Fourteenth Amendment that further departs from the original meaning of the Constitution. Now is the time, and McDonald is the case, to advance an originalist vision of the Privileges or Immunities Clause. Only be correcting the historical record and claiming it for our own can we keep Pandora’s Box sealed.

A PDF of the article, and future commentary will be forthcoming on this Blog. Stay tuned!

Professor Richard Primus posts on SSRN The Future of Disparate Impact (Michigan Law Review, Forthcoming) H/T Legal Theory Blog.

The Supreme Court’s decision in Ricci v. DeStefano (i.e., the New Haven firefighters case) foregrounded the question of whether Title VII’s disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.

The article asks that I not cite without permission, so I shall not cite it. But I highly recommend you read it through. Justice Scalia cited Profssor Primus’s article on Equal Protection in Ricci, so I am looking forward to his analysis.

I join the Court’s opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one. See generally Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493 (2003).

I discuss the aftermath of Ricci in a forthcoming article in the Loyola Law Review, titled Equal Protection from Eminent Domain. Protecting the Home of Olech’s Class of One

The disparate impact analysis came under intense scrutiny in the recent landmark Civil Rights case, Ricci v. DeStefano Although the Supreme Court punted on the issue of whether the disparate analysis impact violates the Constitution, a lone concurring Justice sounded the clarion call.  Like Jacob’s vision of the ladder, Justice Scalia’s concurrence in Ricci presciently portends the “evil day” in which the Court confronts the question of  “[w]hether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection.”

Professor Solum just posted his long-awaited article to SSRN, titled District of Columbia v. Heller and Originalism.

I encourage you to read the entire article, but I would like to focus on one area, where Professor Solum agrees with my reading of Heller.

In his article, Professor Solum wrote:

This disagreement between Justices Scalia and Stevens about the relationship between the prefatory and operative clauses points to a larger disagreement. While Justice Scalia inquired into the semantic content of the operative clause, Justice Stevens focused on the purpose or teleological meaning of the Second Amendment. In a rough way, this disagreement corresponds to the difference between original intentions originalism and original meaning originalism.

In an unpublished paper I wrote in December 2008 for Professor Malcolm’s Common Law & American Rights class, titled Originalism for Dummies, I wrote something along very similar lines. Profssor Solum linked to this article back in December 24, 2008 on the Legal Theory Blog.

[In contrast to Justice Scalia’s original public meaning approach], by focusing almost exclusively on the drafting history, Justice Stevens fails to appreciate the rich common law history of the right to keep and bear arms, and how this history would have informed the original public understanding to an observer in the late eighteenth century. Words derive meaning from what they mean in context . . . Curiously, Justice Stevens rebukes Justice Scalia for “dwelling” on historical sources, including the English Bill of Rights and Blackstone’s Commentaries, proclaiming they only shed “indirect light” on the topic. However [Justice Stevens’s] application of originalism leaves much to be desired. Perhaps Justice Stevens did not properly undertake such [an original public meaning] excursion, because to look at this history paints a very strong picture in favor of an individual right to keep and bear arms.In FCC v. Pacifica Foundation, the Supreme Court analyzed George Carlin’s famous “seven dirty words” that cannot be repeated over the airwaves. Similarly, I have put together the seven dirty words of intentionalism that should not be used in an originalist analysis. This list focuses on words which seek to ascertain the framer’s intent, rather than what the original public meaning of a text is. The words, in no particular order are: (1) wished; (2) contemplated; (3) recognized; (4) intended; (5) motivated; (6) assumed; and (7) considered. Throughout Justices Stevens’s and Breyer’s dissents, they are both guilty of relying on these concepts to try to paint a picture what was on the Framer’s mind. Keep a keen eye open for these words, because they reveal a sneaky attempt to conflate original intent, a discredited form of originalism, with original public meaning originalism, an essential method of historical analysis.

I think Professor Solum is dead-on. Scalia’s opinion is closely tied to an original public meaning inquiry, or semantic originalism as Professor Solum refers to it. Stevens’s opinion utilizes an original intent approach.  I’m pretty content with myself for independently coming to the same conclusion about such as seminal case as a preeminent theorist like Professor Solum. Gratefully, I heavily relied on Professor Solum’s theoretical work when writing this paper.