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The best nine-page opinion ever written!

By Jack M. Balkin

Anyone interested in seeing how a very smart judge can write the equivalent of a treatise in nine pages should read Frank Easterbrook's opinion in National Rifle Association of America v. City of Chicago. It is a truly remarkable performance.

The ostensible (and actual) issue before the Court (a pane of Easterbrook, Posner, and Bauer) is whether Heller should be read as incorporating the Second Amendment against states (or, in this case, the City of Chicago). One Circuit, the Second, has held no, in an opinion joined by Judge Sotomayor. Another, the Ninth, did hold that the Second Amendment was incorporated. So what did the Seventh Circuit do?

First, it is worth noting that the case was argued on May 26 and decided on June 2. This is quite astounding in itself, suggesting very powerfully, as is argued in the opinion itself, that the panel found near-frivolous the claim that it was empowered to apply the Amendment against the states. The reason is, as the opinion elaborates at length, the insistence by the United States Supreme Court that it and only it is empowered to overrule past precedents clearly on point, whatever the current strength of those precedents. Thus the Circuit notes that three opinions (the most recent in 1886) clearly and unequivocally hold that the Amendment limits only the national government. As if this isn't enough, they quote footnote 23 of Heller, which acknowledge the reaffirmation in the latter two of these cases the holding in Cruickshank "that the Second Amendment applies only to the Federal Government."

So why doesn't it follow the trail blazed by the Ninth Circuit panel, which argued that these earlier cases rejected only one particular argument and not the claim accepted by that Circuit? "If a court of appeals could disregard a decision of the Supreme Court," Easterbrook writes, "by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court's decisions culd be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument." As it happens, I don't find the Supreme Court's authoritarianism with regard to its unique ability to inter what are clearly anachronistic precedents at all attractive, but if one takes the doctrine seriously, as the Seventh Circuit either does or professes to do, then it seems to me that their argument is clearly correct. Thus they endorse the Second Circuit decision and, along the way, make it far harder for political conservatives--unless they want to describe Easterbrook and Posner as apostates--to denounce Sotomayor for following extraordinarily clear doctrine on the point.

(Incidentally, I think there is some reason to believe that the panel may in fact believe that the doctrine makes sense. Thus it writes that "If a court of appeals may strike off on its own [as the Ninth Circuit did], this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision." What is interesting is what they mean by "ripe for decision." We know that Richard Posner basically disdains the notion that one can treat the Supreme Court as a "court of law." So does "ripeness," in this context, simply mean, perhaps with a tip of the hat to Alex Bickel, that we leave it up to the political judgment of the Supreme Court when it is timely for its own intervention with regard to a political hot potato? Quite frankly, I'd far rather that Judge Sotomayor be examined on this question than on more substantive doctrine (do you like Roe? Do you support Heller?) where she will obviously make sure that she has nothing truly interesting to say. The Supreme Court's control over its own docket is really quite astonishing, in many ways, including enhancing the ability to decide on rawly political grounds whether or not to take any given case in the first place. I'd be very curious to know what Judge Sotomayor, as the most experienced federal judge to be nominated for the Supreme Court I believe in our history, if one adds together her district and circuit judging, thinks of the way that the Court has exercised this low-visibility, completely discretionary authority with providing whatever "guidance" we think the Court should in fact provide to the constitutionally "inferior" courts.)

Where things get even more interesting, though, is Easterbrook's well-founded statement of doubt as to whether the Supreme Court is in fact prepared to overturn the earlier non-Incorporation cases. As he notes, the Court has firmly rejected Hugo Black's "every last word" theory of incorporation in favor of "selective incorporation." But on what basis does the Court (or any court) "select"? At that point Easterbrook noted that the Ninth Circuit, quoting Washington v. Glucksberg, asked if "the right to keep and bear arms is 'deeply rooted in this nation's history and tradtion.'" At the very least, this requires judges to pick and choose among aspects of the Bill of Rights on the basis of highly debatable, often tendentious, claims about our "history and tradition." As Easterbrook writes, "'Selective incorporation' . . . cannot be reduced to a formula."

So, should the Court actually grant cert in either the Seventh or Second Circuit case--it is almost literally inconceivable that they would do so in the Ninth Circuit case, since that Circuit, after "incorporating" the Amendment, promptly went on to say that it didn't prevent Alameda County from refusing to rent public property for gun shows--we would have the enjoyable spectacle of watching Scalia and Thomas try to figure out what is sufficiently rooted to be incorporated. It occurred to me while reading the opinion that both of these Justices joined the Court well after the heyday of incorporation, selective or otherwise. Indeed, Edwin Meese was making speeches during the 1980s attacking the idea of incorporation, and one might assume that either or both of these Justices were sympathetic to Meese's attack.

Judge Easterbrook notes that one might think that the right to trial by jury is part of the American tradition, yet it is notoriously true that neither the grand jury provision of the Fifth Amendment nor the petit jury provision of the Seventh Amendment has been incorporated against the states. There may be very good reason for this, but the reasons ultimately sound, dare one say it, in a "policy choice" rather than any plausible citation to the barebones text or original history of the sacred document. Indeed, the opinion notes that "the best way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate." Take that, Nino (a former colleague of both Easterbrook's and Posner at the University of Chicago Law School)! Is there any doubt that the panel is basically endorsing Fourth Circuit Judge J. Harvie Wilkinson's lacerating attack on Heller as betraying "judicial restraint" and instead serving as a "conservative" analogue of Roe? (Of course, Judge Posner, no inferior polemicist himself, delivered his own withering attack in the pages of the New Republic.)

But wait, there's more. The opinion concludes by quoting Brandeis's hoary chestnut about states as laboratories of experiment, thus throwing the "federalism" gauntlet before, say, Anthony Kennedy, who often writes of the "dignity" of states and the necessity of federal courts to protect that dignity against those who would unduly limit state autonomy. Thus the penultimate line of this remarkable opinion: "Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon."

Moreover, Judge Easterbrook (and his colleagues) note that any incorporation of Heller, assuming one takes Scalia's opinion truly seriously, means that every rejected self-defense claim suddenly becomes a constitutional issue, since the basis of Scalia's opinion is the hitherto unrecognized fundamental constitutional right of self defense. Some states have limited that right, for example, by requiring "retreat when possible" or "to use non-lethal force when retreat is not possible." Are such limitations now unconstitutional? If not, why not, if one both takes Scalia's opinion seriously and believes that it applies against the states? Chief Justice Roberts dissented this past week in Caperton. the "judge-buying" case, on the ground that it will open the floodgates to litigation by every frustrated loser in any given case. Maybe that's true, maybe not. But if one is concerned about such floodgates, then incorporation of the Second Amendment would seem to assure at least as many new constitutionally-based cases as Caperton. So perhaps Roberts will be less eager to incorporate than some of his conservative admirers think. Who knows?

The Court's moderates--I am hesitatant to call them "liberals"--might ordinarily be expected to endorse incorporating the Bill of Rights, but does anyone seriously believe they will do so in this case? Won't they happily embrace "selective incorporation" and suggest that the Second Amendment has little to do with the "ordered liberty" endorsed by Justice Cardozo in Palko v. Conn., which (in)famously refused to incorporate the double-jeopardy clause against the states.

In any event, anyone who enjoys good legal prose by a judge operating at the top of his game should read the Easterbrook opinion.

Full post as published by Balkinization on June 12, 2009 (boomark / email).