Following the oral argument in Heller, people have been having a good old time making fun of the Justices and their pretty transparent political motivations. Dahlia Lithwick's amusing account of the oral argument is one of her best.

Although I enjoy making sport of the Justices as much as anyone, the question of whether the 2nd Amendment protects an individual right, including a right to self defense, is not that difficult, at least to me. The framers of the 14th amendment assumed that it was one of the privileges or immunities of citizens of the United States. And if a right is a privilege or immunity of citizens of the United States, it hard for me to conclude that it does not bind the United States as well as the individual states.

Now, as a unreconstructed liberal (I'll show you pictures of my bleeding heart), I don't particularly like this result. But it follows sufficiently strongly from other commitments I have about the Constitution that I must accept it.

That's how I come out on the case, but of course, none of the Justices is likely to reason the way I do. So what do I think of their approaches and rationalizations, which were vividly on display at yesterday morning's oral argument?

During the past decade, prominent political scientists have written terrific essays under the rubric "political regimes." Many essays cite as foundational such previous work as Robert Dahl’s "Decision-Making in a Democracy: The Supreme Court as a National Policymaker," 6 Journal of Public Law 279 (1957). Neither Dahl nor the first studies which elaborated his thesis, however, used the term "political regimes" to describe their analysis. Indeed, these foundational works had a somewhat different point than works which self-consciously employ the "political regimes" label. At least, this is true of an essay I wrote that is sometimes cited in this vein. With some luck, this post (and possibly a few others) will clarify matters and not add to the confusion.

The legal culture today is marked by an easy acceptance of the notion that politics have a major influence on decisions by the Supreme Court. That was the point of several recent books on the Supreme Court (including my favorite, Toobin’s The Nine). It was the point of Judge Posner’s 2005 Harvard Law Review article on the Supreme Court--“A Political Court.” Political scientists have relentlessly pounded the “judging is politics” theme for four decades now (still presenting it as if we didn’t already know). And newspapers today routinely explain SCOTUS decisions in terms of political alignments of the judges.

Although we like to think of ourselves as more world-wise than our nineteenth century forebears in holding this sophisticated perspective on the Court, they weren’t the formalist dummies we often make them out to be.

The influence of politics on Supreme Court decisions was the subject of an 1893 article—“Politics and the Supreme Court of the United States”—in the American Law Review (then older and more prestigious than the Harvard Law Review).

Most law professors and lawyers are convinced that the Supreme Court has a special capacity to be guided by constitutional values. Professor Ronald Dworkin of Oxford and New York University Law School described the Supreme Court as “an institution that calls some issues from the battleground of power politics to the forum of principle.” The Supreme Court “is predestined in the long run not only by the thrilling tradition of Anglo-American law but also by the hard facts of its position in the structure of American institutions,” Professor Henry Hart of Harvard Law School agreed, “to be a voice of reason, charged with the creative function of discerning afresh and of articulating and developing impersonal and durable principles of constitutional law.” Elected officials who make the slightest effort to limit federal judicial power bring down the wrath of a united bar. Lawyers of different political persuasions do not agree on much, but most wax eloquent about the virtues of an independent judiciary.

George Packer's article in the New Yorker on "The Fall of Conservatism" reports that "most" of the younger conservatives he spoke with "predicted that Republicans will lose the Presidency this year and suffer a rout in Congress."  He quotes Republican strategist Ed Rollins:  "Today, if you're not rich or Southern or born again, the chances of your being a Republican are not great."

Suppose these predictions and analyses are correct.  What are the implications for the Supreme Court and especially for the continued vitality of Roe v. Wade?

Professor David Adamany in an essay written many years ago maintained that one consequence of the FDR's Court-packing plan of 1937 was that Roosevelt lost vital political capital that could have been spent on other liberal reforms. Most scholars agree that after the failed Court-packing plan and the failed purge of southern conservatives in 1938, the momentum for the Second New Deal was largely over, not to be revived until the 1960s.

The New York Times reports that "28 retired generals and admirals plan to release a letter on Friday urging Congress to repeal" the law requring the military's don't ask don't tell policy. This is an unjust policy that is on its way to repeal. The only question is when.

I'm going to crosspost this at http://www.utexas.edu/law/faculty/slevinson/undemocratic/blog/, which is devoted entirely to discussion of the ideas in Our Undemocratic Constitution (and which, since the Moyers interview, is getting some participation). I invite anyone on this list to join the discussion there.

The heart of Mark's post is as follows:

This Wall Street Journal op-ed by Steven Calabresi and John McGinnis argues for John McCain on the grounds that he will appoint the judges who will "restor[e] constitutional government" and prevent Democrats from "threaten[ing] the jurisprudential gains of the past three decades, and provid[ing] new impetus to judicial activism of a kind not seen since the 1960s":
The expected value of any presidential candidate for the future of the American judiciary must be discounted by the probability that the candidate will not prevail in the election. For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency.

The judiciary is different. On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century. Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage, especially to the Supreme Court.

Dahlia Lithwick and Eric Posner question my political science-style account of living constitutionalism, in which popular mobilization and partisan entrenchment in the judiciary play a major role in shaping constitutional change. Dahlia doesn't like the normative implications of my account, while Eric largely agrees with the account descriptively but thinks it makes judicial review superfluous. Let me respond to Dahlia in this post, and respond to Eric in a later post.

In a previous post I predicted that the Supreme Court would find for individual rights advocates in the upcoming Heller case, but that this might advantage gun control advocates and the Democratic party in the short run. Responding to my analysis, James Skoufis over at Real Clear Politics argues:

As I noted in a previous post, I have been having an exchange with Professor Michael Klarman over at the American Constitutional Society. My last post seems particularly relevant to some concerns of Balkinization, so as either a public servive or, more likely, pathetic self-promotion, I've reproduced an edited version.

Michael Klarman’s work on the constitutional history of race correctly notes that American racial politics have historically been subject to periods of polarization, and that this polarization has had surprising consequences. Every major burst of civil rights activism in the United States has been preceded by an intense period of polarization, marked by increased militant commitments to the racial status quo in the south. To an extent rarely commented on, the Constitution of the United States may be responsible this polarization and may also bias ordinary politics toward more conservative racial views.

Over at Convictions, David Barron argues that the eagerness of conservatives to uphold gun rights shows that they are also eager to overturn Roe, despite the damage this would do to the Republican party.

As one of the leading purveyors of the claim that the Court will chip away at Roe without overruling it, I respectfully suggest that David's logic is flawed.

What affect will a decision next spring in the Second Amendment case, Heller v. District of Columbia, have on the upcoming 2008 elections?

A recurrent discussion, provoked especially by Brian Tamanaha in this venue, has involved explanations of judicial behavior. Many political scientists view judges as simply "politicians in robes" who vote to implement their preferred views on public policies. Many law professors believe that judges operate within what Ronald Dworkin termed "the forum of principle." One might, of course, argue, as Jack and I have, that judges can be explained by reference to their "high politics," which is distinguishable from a "lower" kind of politics that focuses, for example, on helping out one's own political party.

Many supporters of Second Amendment rights are, pardon the pun, up in arms over the Bush Administration Justice Department's amicus brief in Heller, the Second Amendment case now before the Supreme Court. The government's brief recognizes an individual right to bear arms but argues that historically the right excluded felons (even though they are presumably part of "the People"). Moreover, it argues that the Second Amendment may permit a wide range of reasonable regulations of firearms.

Over at Convictions, Dahlia Lithwick has seen something in my previous post on living constitutionalism that I didn't see. I was not writing about the "drawbacks of living constitutionalism," but about how living constitutionalism of the kind she likes actually works.

For those interested in avoiding work and/or learning about the new scholarship on race and American Constitutional Development, Professor Michael Klarman of the University of Virginia Law School and I are blogging about his new book, Brown v. Board of Education, and the history of racial equality in the United States over on the website of the American Constitutional Society. Our conversation has ranged from the influence of the Supreme Court on race policy to the political construction of judicial review to the extent to which racial progress in the United States is a function of virtue or interest. Happy reading.

Paul Frymer's Black and Blue: African Amerians, the Labor Movement, and the Decline of the Democratic Party is an exceptional study of the relationships between the civil rights and labor movements during the second half of the twentieth century. Professor Frymer of the University of California, Santa Cruz, challenges both the common view in political science that courts cannot bring about social change, and the common view in law that courts are desirable agents for social change. The result is a far more nuanced understanding of the role of courts in American political and constitutional development. Judicial decisions matter, but they matter for reasons that confound scholars and policy activists. The book also tackles important problems in the politics of race.

One would think from the recent excitement over the possibility of a bipartisan political movement that Hillary Clinton was running on a platform calling for confiscation of corporate property, reestablishment of the moderately progressive tax structure of the 1970s, the return of all American troops from abroad, the abolition of capital punishment, and (heaven forbid), gay marriage. With the exception of a stray remark by John Edwards, Democrats polling more than 10% continue to run to the right of Richard Nixon. Indeed, judging by their legislative activity this year, the Democrats as a whole have almost no ambition to push any program that is substantially to the left of center. The real issue ought to be why some journalists are so excited about the possibility of a third party that might take a middle position between the party clearly to right of the electorate and the party that on its best day sometimes lurches very slightly to the left.

Tomorrow I'll be speaking at the American Enterprise Institute at a panel jointly sponsored by AEI and Brookings on Steve Teles's wonderful new book, The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Also on the panel will be Michael Greve, an AEI scholar in residence who was the cofounder and executive director of the Center for Individual Rights, an important conservative public interest law firm. William Galston of Brookings will moderate.

Teles's book is important in many respects; indeed, it is likely to become the standard history of the rise of legal conservatism. For me what is interesting is the light it sheds on how living constitutionalism actually works, in this case, living constitutionalism from the right.

This op-ed appeared on History News Network and in the Los Angeles Daily Journal, and is cross-posted on the Legal History Blog:

The recent anniversary of Brown v. Board of Education falls nearly 100 years since the 20th century's greatest civil rights lawyer, Thurgood Marshall, was born (July 2, 1908). Brown was a milestone in the nation's civil rights history; the case also christened Marshall, the plaintiff's lead attorney, as "Mr. Civil Rights." Not long after, Marshall would be eclipsed by a new generation of civil rights leaders. His greatest disappointment, however, was to see the court that decided Brown turn away from his legacy.

At this time of year my thoughts turn to Bush v. Gore. That’s because I have taught a Fourteenth Amendment class in the fall semester for about 12 years. In November 2000, happily teaching my students the nuances of the right of privacy, I was fielding an increasing number of questions about the election crisis. I hadn’t planned to teach voting rights that year, but I saw it would be helpful to devote some class time to the developing litigation. As I suspect many conlaw profs were doing that November, I explained to the class that given institutional and justiciability concerns, there was little likelihood the Supreme Court would intervene in the middle of one of the most political processes we have (and constitutionally unique to boot).

Probably the most famous dissent in the history of the United States Supreme Court is Holmes’ dissent in Lochner (1905). “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics,” he declaimed.

“A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizens to the state or of laissez faire.”

Holmes’ attack on the majority has been quoted innumerable times, and is widely considered a brilliant statement of what was wrong with the majority view.

There is reason to believe that Holmes’ got his argument—or at least the idea—from an article that was published a dozen years earlier (which I accidentally stumbled across). In 1893, making an argument that is remarkably resonant of Holmes’ dissent, C.B. Labatt described what he saw as a newly emerging theory of constitutional interpretation:

Probably the most famous dissent in the history of the United States Supreme Court is Holmes’ dissent in Lochner (1905). “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Static,” he declaimed.

“A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizens to the state or of laissez faire.”

Holmes’ attack on the majority has been quoted innumerable times, and is widely considered a brilliant statement of what was wrong with the majority view.

There is reason to believe that Holmes’ got his argument—or at least the idea—from an article that was published a dozen years earlier (which I accidentally stumbled across). In 1893, making an argument that is remarkably resonant of Holmes’ dissent, C.B. Labatt described what he saw as a newly emerging theory of constitutional interpretation:

A number of scholars have recently proposed that we should cut back on the Supreme Court's power of judicial review of legislation. The idea of abolishing it, however, appears to be gaining little traction. Judicial review has positive benefits and dumping it strikes many as too drastic (although the UK has done fine without it). Another suggestion out there is to eliminate court jurisdiction over certain types of cases. That also seems overly blunt.

Following up on Mark's previous post, I think the correct analysis of why a Republican dominated court is unlikely to overturn Roe is not that the Justices themselves are primarily motivated to keep the Republican coalition together. Rather, the argument has to do with Presidential motivations in nominating particular Justices to the Supreme Court. That is, if you focus primarily on the motivation of Justices after they get on the bench you are looking in the wrong place for an explanation.

Since the failure of the Bork nomination in 1987, it has become clear that Republican Presidents and the party itself would pay a political cost if the Supreme Court appeared ready to overturn Roe v. Wade. Hence they have chosen people who were likely to weaken Roe but not directly overrule it. Ronald Reagan, for example, appointed Anthony Kennedy as a compromise candidate who could win easy confirmation. Kennedy has turned out to be far more moderate than Robert Bork would likely have been, and indeed, one can hardly imagine Robert Bork writing either Casey or Lawrence v. Texas.

China's attitude toward its judiciary is reflected in the country's changing judicial uniform. Until 2001, judges donned military uniforms, a look that tied them to China’s police and military as well as to the idea that loyalty to the law comes second to adhering to the principals of party leadership.

The outfit made sense, given the beginnings of China’s legal system in the late 1970s, when retired military officers were often funneled into the courtroom. There were virtually no trained lawyers and a glut of retiring military officers. They, at the very least, looked official.