Commentary Magazine


Why Liberals Should Be Worried About Kagan

As I noted yesterday, Justice Samuel Alito’s dissent in Christian Legal Society v. Martinez is a brilliant take-down of the majority’s reasoning. His concurring opinion in McDonald v. Chicago is equally noteworthy.

As Justice Scalia did in Heller (which held that the Second Amendment’s right to bear arms is a personal right), Alito takes us on a journey through constitutional history and court precedent, leaving little doubt that the ruling is correct — and that the dissenters’ view is not only wrong but also radical. At the conclusion of his analysis, he dispenses with the arguments of the city of Chicago (Municipal respondents), which the dissenters would accept. I have omitted the numerous citations for ease of reading: 

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. Municipal respondents submit that the Due Process Clause protects only those rights “‘recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.’” According to municipal respondents, if it is possible to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause Opinion of the Court does not make that right binding on the States. Brief for Municipal Respondents 9. Therefore, the municipal respondents continue, because such countries as England,Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the Fourteenth Amendment.

Alito then dismantles Justice Stevens’s dissent:

Justice Stevens would “‘ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments.’” The question presented in this case, in his view, “is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom.” He would hold that “[t]he rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights.”

As we have explained, the Court, for the past half century, has moved away from the two-track approach. If we were now to accept Justice Stevens’ theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents. The relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle. It is far too late to exhume what Justice Brennan, writing for the Court 46 years ago, derided as “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.”

Justice Scalia dissents separately, purely to make mincemeat of Stevens’s dissent. He picks up where Alito leaves off and makes it clear that Justice Stevens is doing no more than making up rules as he goes along. Scalia takes issue with the notion that Stevens and other justices can decide which fundamental rights are binding on the states and which are not. A sample (the dissent is brief and should be read entirely to enjoy the full flavor), again with citations omitted:

Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as “deeply rooted in this Nation’s history and tradition,” I can find no other explanation for such certitude except that Justice Stevens, despite his forswearing of “personal and private notions,” deeply believes it should be out. The subjective nature of Justice Stevens’ standard is also apparent from his claim that it is the courts’ prerogative—indeed their duty — to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine. …

Justice Stevens resists this description, insisting that his approach provides plenty of “guideposts” and “constraints” to keep courts from “injecting excessive subjectivity” into the process.Plenty indeed — and that alone is a problem. The ability of omni directional guideposts to constrain is inversely proportional to their number. But even individually, each lodestar or limitation he lists either is incapable of restraining judicial whimsy or cannot be squared with the precedents he seeks to preserve. …

Justice Stevens also argues that requiring courts to show “respect for the democratic process” should serve as a constraint. That is true, but Justice Stevens would have them show respect in an extraordinary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate.” In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, apparently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accomplishes the objective of ensuring that the rights this Court held protected in [ abortion and gay rights cases], and other such cases fit the theory — but at the cost of insulting rather than respecting the democratic process.

You see the intellectual fire power — and the dilemma for liberals. Who really thinks that Elena Kagan can go toe to toe with these jurists? What solace can opponents of original jurisprudence take from her “life” — which, she says, provides the basis for confirmation? It’s hardly evident that she has the skill to compile a historical narrative and deconstruct her ideological opponents as effectively as these two, or as well as Chief Justice Roberts and Justice Thomas.

Now great logic does not always persuade Justice Kennedy, but if the aim here was to come up with a counterweight to the “conservative” justices, then perhaps Obama should have gone with someone with demonstrated legal prowess, who can opine on, not merely repeat, the Court’s past holdings. It is for this very reason that conservatives might prefer Kagan to potential alternatives — and save the filibuster for a truly dangerous liberal zealot.

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