Gun Case Puts Focus on Sotomayor & Future Nominees

CFJ Executive Director Curt Levey on the Supreme Court’s decision today to review the Chicago gun case:

“With the Supreme Court now set to decide in McDonald v. Chicago whether the Second Amendment applies to state and local gun laws, the focus is on the Court’s newest Justice, Sonia Sotomayor, and on President Obama’s future picks for the Court.

“Gun owners were alarmed by Sotomayor’s nomination to the Court, because of her ‘extreme anti-gun philosophy’ and record on the Second Circuit, in the words of former NRA president Sandy Froman. At her Senate hearing this summer, Sotomayor defended that record by saying that her hands were tied by old Supreme Court precedent. Now that she’s on the High Court, her hands are no longer tied. She will have a lot of explaining to do if she decides in McDonald that the right to keep and bear arms is the only significant right in the Bill of Rights that doesn’t apply to the states. Such a decision would indicate that she was not serious when she promised the Senate that she would put the rule of law above ideology.

“Today’s announcement ensures that gun owners will continue to play a big role in Supreme Court confirmations, just as they did this summer. The Court’s 2008 decision in District of Columbia v. Heller, recognizing the Second Amendment as an individual right, moved the battle over gun rights from the legislatures to the courts. That set the stage for gun owners to enter the judicial wars. The decision to review McDonald puts the future of gun rights back squarely in the Supreme Court, reinforcing the conviction among gun owners that their fate is now in the hands of judges and that their continued involvement in the judicial confirmation process is vital.

“Whatever the Supreme Court’s decision in McDonald, it will further focus the Second Amendment community on the needs for constitutionalist judges. Heller was limited to federal gun laws and the District of Columbia, but most of the laws that worry gun owners are at the state and local level. If the McDonald decision recognizes an individual Second Amendment right at that level, the number of gun rights cases – and thus the importance of the judges issue to gun owners – will explode. Should the Supreme Court rule the other way in McDonald, the anger of gun owners will be a force to reckon with every time there’s a Supreme Court nomination.”

Is It Unconstitutional to Mandate Health Insurance?

That is one of the questions being debated on Politico's "The Arena."

I am linking to two noteworthy posts. The first is by Georgetown professor Randy Barnett.

OK, let's be old fashioned and start with what the Constitution says. After the Preamble, the very first sentence of the Constitution says "All legislative powers *herein granted* shall be vested in a Congress of the United States. . . ." And again the Necessary and Proper Clause gives Congress the power "To make all laws which shall be necessary and proper for carrying into execution *the foregoing powers*, and all other powers *vested by this Constitution* in the government of the United States, or in any department or officer thereof." The Tenth Amendment is not required to see that Congressional power must be found somewhere in the document.("Tenthers"? What's next? "Firsters"? "Necessary and Proper Clausers"?Enough with the derogatory labels, already.) So where in the document is the power to mandate that individuals buy health insurance?

The power "to regulate commerce . . . . among the several states"? This clause was designed to deprive states of their powers under the Articles to erect trade barriers to commerce among the several states. It accomplished this by giving Congress the exclusive power over interstate sales and transport of goods (subject to the requirement that its regulations be both "necessary and proper"). It did not reach activities that were neither commerce, nor interstate. The business of providing health insurance is now an entirely intrastate activity.

The "spending power"? There is no such enumerated power. There is only the enumerated power to tax. Laws spending tax revenues are authorized, again, if they are "necessary and proper for carrying into execution *the foregoing powers*." So we return to the previous issue: what enumerated end or object is Congress spending money to accomplish?

But following the text of the Constitution is so Eighteenth Century.

The other is by Cato's Vice President for Legal Affairs Roger Pilon.

Today we live under something called “constitutional law” – an accumulation of 220 years of Supreme Court opinions – and that “law” reflects the Constitution only occasionally.

Whole treatises could be, and have been, written on the subject, so I’ll make just a few quick points here. The Constitution was written and ratified not simply to authorize and institute but to limit government as well. Indeed, that’s the main reason for having “a constitution” – a compact between the people and the governors they authorize to act under it, who take an oath to abide by its provisions. Congress has only 18 enumerated powers or ends. Moreover, the exercise of those powers – and those of the states after the Civil War Amendments were ratified – are further limited by our rights, both enumerated and unenumerated. Under our Constitution, most of life was meant to be lived in the private sector. Only a few things – like law enforcement and national defense – were “socialized."

There is plenty of back and forth so it will be an interesting debate to follow. The issue was prompted by an article in today's Wall Street Journal.

UPDATE: Much more about this at Volokh.

Trouble Ahead for Obama Nominations

In an article that otherwise reads much like a White House press release, Jeffrey Toobin’s piece in the September 21 New Yorker gives conservatives several reasons for cheer about the judges issue. Toobin’s main themes are that President Obama has embraced the notion of judicial restraint, has “distanced himself” from activist Justices like William Brennan and Thurgood Marshall, prefers pragmatism to ideology in selecting judges, and intended the Sotomayor nomination to be a “post-partisan choice.” Rather than focus on the trouble we have buying Toobin’s spin, we’ll go right to the reasons for cheer.

First, Toobin’s observation about this summer’s Sotomayor hearings:

“Sotomayor’s words amounted to an acknowledgment that conservative rhetoric, if not conservative views, had become the default mode for Supreme Court nominees. In the hearings of … Ginsburg and Breyer … both candidates said, essentially, that the meaning of the Constitution had evolved with the times. … Sotomayor and the Democratic senators who supported her portrayed a much less dynamic process of constitutional change.”

This largely mirrors the “huge silver lining” we found in the Sotomayor hearings:
“[T]he living Constitution is now dead as a defensible judicial philosophy outside academe. No doubt judicial activism will live on surreptitiously in the courts, but it is doubtful we will ever again see a Supreme Court nominee who has openly espoused it, no less one willing to defend it during their confirmation hearings.”

Toobin also comments on Dawn Johnsen’s stalled Justice Department nomination and the long delays in confirming Obama nominees Cass Sunstein and Harold Koh to OMB and the State Department respectively. Toobin concludes that

“The trouble that these outspoken [liberal] academics have had in winning confirmation for Administration posts offers another augury of major battles ahead if Obama nominates any of them, or anyone like them, for judgeships.”

The problems encountered by these nominees reinforce a point we have been making all year, namely that all it takes to put an Obama nominee in serious jeopardy is the opposition of a few red or purple state Democrats. This point is especially true for judicial nominees, who are given less deference by the Senate than executive branch nominees like Johnsen, Sunstein and Koh.

Conservatives should also take heart from Toobin’s endorsement of a point made by law professor David Strauss:

“The Republican coalition cares a lot more about [the courts] at this point [than the Democratic coalition], because [Republicans] want the Court to change on issues like abortion, affirmative action, school prayer, gun rights. If the courts stay right where they are, that’s fine with the Democrats.”

Combine that point with Roll Call’s observation yesterday that, if there’s a Supreme Court vacancy next year – a high probability given Justice Stevens’ decision to hire only one clerk and Justice Ginsburg’s illness – “it would not only dominate Beltway politics, but also serve as a major topic of the 2010 midterm elections.” Together, these two points mean that the judges issue is likely to favor Republican turnout and otherwise be a winning issue for the GOP in 2010.

Gun Owners' Next Victory in D.C.

Robert Levy of the Cato Institute outlines, in a Washington Post Op-Ed, the next D.C. law being challenged under the Second Amendment: the right to carry a weapon outside the home for self-defense. His prediction:

"The courts will (and should) invalidate Washington's unconditional ban on carrying, as well as similar bans in Wisconsin and Illinois, the only two states to have such bans. Regulations consistent with the Heller opinion will be permitted. But the Supreme Court has affirmed that the Second Amendment secures an individual right, expressly enumerated in the Constitution. That means government has the burden of demonstrating that its proposed regulations are necessary."

For more on the post-Heller gun debate see this Cato Unbound discussion from July 2008.

Is Justice Stevens Signaling His Exit

Like Justice Souter before him, Justice Stevens seems to be hinting at his exit via his clerk hiring.

"Supreme Court Justice John Paul Stevens has hired fewer law clerks than usual, generating speculation that the leader of the court's liberals will retire next year. ...

Souter's failure to hire clerks was the first signal that he was contemplating leaving the court. ...

In response to a question from The Associated Press, Stevens confirmed through a court spokeswoman Tuesday that he has hired only one clerk for the term that begins in October 2010. He is among several justices who typically have hired all four clerks for the following year by now. Information about this advance hiring is not released by the court but is regularly published by some legal blogs.

Stevens did not say whether he plans to hire his full allotment of clerks or whether he will leave the court at the conclusion of the term that begins next month. Retired justices are allowed to hire one clerk."