Politics, professors, and pundits

Justice Scalia’s denigrating a plea to overrule the Slaughterhouse cases as “the darling of the professoriate” made news. As usual, the reports, which reduce the exchange to sound bites, are not all accurate. The fascinating idea at the heart of the matter is that being an effective advocate—a good lawyer—can be fundamentally at odds with being a sound legal theorist, even when arguing to a sympathetic judge. This is exactly why I hate it when students echo my own little pet theories back at me on an exam. I would rather they just stuck to the law. It’s also a vivid illustration of why doctrinal and clinical education are equally important in the modern academy. Here’s the unabridged opening of the argument, which I fully realize is long but seems worth it to me:

• MR. GURA: Mr. Chief Justice, and may it please the Court: Although Chicago’s ordinances cannot survive the faithful application of due process doctrines, there is an even simpler, more essential reason for reversing the lower court’s judgment. The Constitution’s plain text, as understood by the people that ratified it, mandates this result.
In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship.
The rights so guaranteed were not trivial. The Civil War was not fought because States were attacking people on the high seas or blocking access to the Bureau of Engraving and Printing. The rights secured by the Fourteenth Amendment were understood to include the fundamental rights honored by any free government and the personal guarantees of the—
• CHIEF JUSTICE ROBERTS: Of course, this argument is contrary to the Slaughter-House cases, which have been the law for 140 years. It might be simpler, but it’s a big—it’s a heavy burden for you to carry to suggest that we ought to overrule that decision.
• MR. GURA: Your Honor, the Slaughter-House cases should not have any stare decisis effect before the Court. The Court has always found that when a case is extremely wrong, when there is a great consensus that it was simply not decided correctly, especially in a constitutional matter, it has less force.
• JUSTICE SOTOMAYOR: What is it that has—has been caused by it that we have to remedy, meaning States have relied on having no grand juries, States have relied on not having civil trials in certain money cases, they have relied on regulating the use of firearms based on us, the Court, not incorporating the Privileges and Immunities Clause in the way that you identify it.
• MR. GURA: State—
• JUSTICE SOTOMAYOR: What—in which ways has ordered liberty been badly affected?
MR. GURA: Justice Sotomayor, States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional.
• JUSTICE GINSBURG: Are you saying that the rights—if you could clarify your conception of privileges and immunities. Am I right in thinking that to keep and bear arms would be included even if we had no Second Amendment, as you envision privileges and immunities?
• MR. GURA: Justice Ginsburg, that is correct. The framers and the public understood the term—
• JUSTICE GINSBURG: But just tell us the dimensions of what it is. I mean, we have the eight amendments, so I know you say that’s included. Keep and bear arms would be included even absent the Second Amendment. What unenumerated rights would we be declaring privileges and immunities under your conception of it?
• MR. GURA: Although it’s impossible to give a full list of all the unenumerated rights that might be protected by the Privileges and Immunities Clause, just as it is impossible to do so under the Due Process Clause, at least with respect to the Privileges and Immunities Clause we have wonderful historical guideposts. There are—
• JUSTICE SCALIA: Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due—?
• MR. GURA: It’s—
• JUSTICE SCALIA: Is it easier to do it under privileges and immunities than it is under substantive due process?
• MR. GURA: It is easier in terms, perhaps, of—of the text and history of the original public understanding of—
• JUSTICE SCALIA: No, no. I’m not talking about whether—whether the Slaughter-House Cases were right or wrong. I’m saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?
• MR. GURA: Justice Scalia, I suppose the answer to that would be no, because—
• JUSTICE SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when—when you can reach your result under substantive due—I mean, you know, unless you are bucking for a—a place on some law school faculty—
(Laughter.)
• MR. GURA: No. No. I have left law school some time ago and this is not an attempt to—to return.
• JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it’s wrong, I have—even I have acquiesced in it?
(Laughter.)
• MR. GURA: Justice Scalia, we would be extremely happy if the Court reverses the lower court based on the substantive due process theory that we argued in the Seventh Circuit. …