How Many Votes To Overrule The Slaughterhouse Cases?
1) Justice Thomas. I suspect Justice Thomas is Gura’s only vote. Justice Thomas more or less took Gura’s position in his dissent in Saenz v. Roe a decade ago. He’s likely on board today.
2) Justice Scalia. In contrast to Justice Thomas, Justice Scalia probably won’t agree with the Gura brief in light of stare decisis. In speeches about originalism and stare decisis, Scalia often uses the 14th Amendment incorporation doctrine as an example of a line of cases that he thinks was wrong but that he won’t overrule because of all the reliance interests built up around it over the years. ...
3) Chief Justice Roberts and Justice Alito. Chief Justice Roberts and Justice Alito are also sympathetic to originalism, and may harbor the sense that Slaughterhouse and the incorporation cases were both wrong as an original matter. But I don’t think they’re revolutionaries, and the brief calls for a revolution. ...
4) Justice Kennedy. Justice Kennedy is not an originalist, and he basically likes the Court’s existing Due Process jurisprudence. I think he’s a solid vote for incorporation via Due Process, but I don’t see him wanting to change the law in such a radical and far-reaching way under the P or I clause. It’s just not his style.
5) Justices Stevens, Ginsburg, Breyer, and Sotomayor. I suspect the Justices on the more liberal half will read the Gura brief and conclude it’s just trying to resurrect Lochner. The Gura brief envisions a Privileges or Immunities Clause that would include “the right to contract,” the right “to take, hold and dispose of property, either real or personal,” and the right to “an exemption from higher taxes or impositions than are paid by the other citizens of the state.” That sounds like Lochner, which to them is the very epitome of a wrong turn in constitutional law. Plus, they presumably realize that overturning Slaughterhouse is a major goal of libertarian legal activists like the folks at the Institute for Justice who want to resurrect P or I as a way to attack the modern regulatory state. I don’t expect them to help.
I think Lochner is the Elephant in the room (I have posted about those hoping that the very economic liberty in Lochner will now be back on the table). Both sides have accused the other side of resurrecting Lochner as if it were a scarlet letter. Resurrecting the P or I clause could indeed open a Pandora's Box of rights as Kerr points out in his post. It will be interesting to see whether the court tries to do both, resurrect P or I and keep the lid on Pandora's Box, or whether it opts to incorporate via Due Process.