Tag Archives: supreme-court

What’s up with the Supreme Court?

May 19, 2025 – 9:19 am

Consider this a follow-up to last week’s post of qualified optimism about the prospects for American democracy to outlive the Trump administration. We continue to be steaming towards a direct clash between Trump and the Supreme Court. How that plays out will be a big factor in whether our way of government survives.

A lot of the pessimists I talk with say this clash has already happened and the bad guys won. Specifically, the Court told the Trump administration to bring Kilmar Abrego Garcia back from the concentration camp Trump has established in El Salvador. Trump has ignored that order and gotten away with it. So: courts and laws are powerless and Trump will do as he pleases. For all practical purposes, American democracy is already dead.

I read the situation somewhat differently. To me, the Supreme Court and the Trump administration look like two fighters circling each other warily, each waiting to see if the other really wants to do this.

It already seems clear that the Court will not endorse Trump’s most obviously illegal acts. It will not deny that the 14th Amendment guarantees birthright citizenship, no matter how badly Trump wants that denial. It won’t agree that he can invoke wartime powers (like the Alien Enemies Act) when there is no war. It won’t endorse him unilaterally unmaking agencies made and funded by Congress. The administration seems to understand this, which is why it hasn’t pushed for the Court to resolve those issues quickly.

Instead, Trump’s lawyers keep offering the Court ways to surrender quietly, by writing itself out of the picture. For example, the portion of the birthright citizenship case that the administration argued in front of the Court this week did not seek an answer to the central question. Instead, it focused on whether lower court injunctions could cover the entire country. The acting Solicitor General argued for a system in which each loss in a lower court only affected the specific plaintiffs involved, leaving the administration free to ignore the birthright citizenship of any other Americans until they sued too. Only a Supreme Court ruling could shut the administration down completely.

This leaves an enormous loophole: If the administration simply refused to appeal a series of lower-court losses, none of the cases would make it to the Supreme Court, so there could be no national ruling against them.

In other words: You don’t have to endorse our position, Supremes, just write yourself out of the picture and let us proceed.

For its part, the Court has so far treated the Trump administration as if it were a good-faith actor, which it clearly is not. In the Garcia case, the Supremes supported a lower-court order to “facilitate” Garcia’s release, leaving the details to the executive branch. (That’s appropriate if the executive branch is acting in good faith, because the executive is presumed to be better equipped to deal with foreign governments.) In essence, it was offering Trump the opportunity to stop all this nonsense and start behaving like the kind of American president the Constitution envisions.

But of course he did not. The Trump administration interpreted “facilitate” in a ridiculously narrow way, and — surprise! — the details of Garcia’s release haven’t worked out. The government continues to give the lower-court judge a run-around as to what it is or is not doing to get Garcia back.

Sooner or later, Judge Xinis is going to tire of this and order the administration to present Garcia in his court on a particular date. That order will also get appealed up to the Supreme Court, which will then have to decide whether it is ready to confront Trump or surrender to him. If it isn’t ready to surrender, then Trump will have to decide whether he recognizes the authority of the Court. If he doesn’t, that’s the crisis point.

I don’t think anyone knows whether we’ll get there, or what will happen then. Trump himself may not know, and the answer may turn on how popular Trump is at the time, how the economy is going, how vigorously Republicans in Congress are standing up for him, how well organized anti-Trump protesters are, and a lot of other factors that have nothing to do with the case at hand.

It’s worth noting that so far the Trump administration is not acting as if it had thrown off the burden of judicial oversight. For example, on Friday the Supreme Court extended its previous ban on deporting any more people under the authority of the Alien Enemies Act until the administration’s invocation of the AEA’s wartime powers can be fully adjudicated. As best we can tell, the administration is obeying the order.

At least for now.

By weeklysift | Posted in Articles | Also tagged , , , | Comments (9)

Down to the Wire

July 1, 2024 – 10:30 am

Having admitted (in the previous article) to being wrong about the debate, I might as well confess something else: I had expected the Supreme Court to release their Trump immunity decision Friday, the second-to-last day of this term.

Obviously, the Court’s Republican majority wants to delay as long as possible, in order to make sure that their party’s presidential candidate doesn’t stand trial again before the election. (Such political considerations used to be beneath the Supreme Court, but little is beneath the Roberts court.) Jack Smith asked them to take the case back in December, and his prosecution of Trump’s post-2020-election conspiracy has been frozen ever since. (The trial should be over by now.) The Court actually took it in February, they heard oral arguments in April, and subsequently they have been sitting on their hands for more than two months. We can all see what they’re (not) doing.

But the Court pretends to be oblivious to politics, so delaying every possible second would make the game a little too obvious, or so I thought. Announcing their decision on the last day, I anticipated, would be too big a fuck-you to the American people.

Well, guess what, American people? I gave them too much credit. Today is when they will announce their last rulings of the term, and the immunity decision still hasn’t come out as of 10:30 EDT.

What they did announce this week was serious enough. The Court always procrastinates to a certain extent, so every year there’s a flurry of decisions in the last few days. But this year is extreme, and I (like several other observers) wonder whether that’s intentional: When you release hundreds and hundreds of pages of legal reasoning in a few days, who has time to process it all and inform the voters about it before the news cycle moves on to something else?

Not me, apparently. This week I haven’t done the kind of detailed analysis I’ve done the last two weeks. So while I’ve dipped into the text of the decisions, I’ve also had to rely on other people’s summaries. Here’s what the Court did this week.

They legalized bribery. Not in so many words, of course, but that’s the upshot. As Amy Howe delicately put it on SCOTUSblog, they “limited the scope of anti-bribery laws”.

The gist of Brett Kavanaugh’s opinion (supported by the entire conservative faction: Gorsuch, Barrett, Thomas, Alito, and Roberts) is that bribery is when a public official is paid off before making a decision. If he’s paid off afterwards, it’s a gratuity, which is fine. So going forward, paying officials to do you a favor will only be a crime if you do it stupidly. (“No, no, I’m tipping you for last week’s decision. Tomorrow’s decision is completely up to you. Do whatever you think is best.”)

There’s been a lot of conservative rhetoric lately about Trump’s prosecution making the US a “third-world country”. But (until now) one important feature has separated the US from the bad-example kind of small countries: Public officials don’t ordinarily expect gratuities for doing their jobs. For example, I’ve never tipped the people who process my driver’s license renewals at the DMV. In some countries, I’d be expected to. Maybe that’s the direction Kavanaugh pictures us going.

Typically, in order to illustrate just how bad a decision is, you have to make up some hypothetical example that takes the decision’s logic to an extreme, like “What if a president had Seal Team 6 assassinate his rivals?” Here, though, you just have to recount the facts of the case at hand (which Kavanaugh doesn’t do, but Justice Jackson’s dissent does): While he was mayor of Portage, Indiana, James Snyder oversaw the purchase of new garbage trucks at a cost of $1.1 million.

Snyder put one of his friends, Randy Reeder, in charge of the bidding process, despite Reeder’s lack of experience in administering public bids. Evidence presented at Snyder’s trial showed that Reeder tailored bid specifications for two different city contracts to favor Great Lakes Peterbilt, a truck dealership owned by brothers Robert Buha and Stephen Buha. Evidence also showed that during the bidding process, Snyder was in contact with the Buha brothers, but no other bidders. … Reeder testified that he crafted some specifications, including delivery within 150 days, knowing they would favor Great Lakes Peterbilt. The board of works voted to award Great Lakes Peterbilt the contract. Evidence at trial showed that the city could have saved about $60,000 had it not prioritized expedited delivery. …

Shortly after the second contract was awarded, Snyder paid the Buha brothers a visit at their dealership. “I need money,” he said. He asked for $15,000; the dealership gave him $13,000. When federal investigators heard about the payment and came calling, Snyder told them the check was for information technology and health insurance consulting services that he had provided to the dealership. He gave different explanations for the money to Reeder and a different city employee.

Employees at Great Lakes Peterbilt testified that Snyder never performed any consulting work for the dealership. And during the federal investigation, no written agreements, work product, evidence of meetings, invoices, or other documentation was ever produced relating to any consulting work performed by Snyder. All of this confirmed testimony from the dealership’s controller, who had cut the check to Snyder: Snyder had instead been paid for an “inside track.”

Kavanaugh doesn’t dispute those facts, he just chooses not to mention them, while ruling that this kind of thing is OK now. Any other interpretation of the law, he says, would criminalize harmless gratuities, such as “gift cards, lunches, plaques, books, framed photos, or the like”. But Jackson points to the word “corruptly” in the law. In order to convict an official, a jury has to believe that the gratuity was large enough that its anticipation corrupted the official’s judgment. A plaque probably wouldn’t do that, but $13,000 goes a long way in Portage.

Kavanaugh also reasons that he is only monkey-wrenching the federal anti-corruption law, so Snyder might still be prosecuted under local law. This entirely misses the point of federal anti-corruption laws. Local corruption needs to be subject to federal oversight, because local processes may have been corrupted. That’s why Eliot Ness’ Untouchables could take down Al Capone when the Chicago police had failed.

I think the cartoonist is on to something: Presumably, it would now be OK if James Snyder wrote Brett Kavanaugh a check in appreciation of his fine judicial wisdom and his grasp of political reality in towns like Portage. (Did I mention that corrupt Clarence Thomas signed on to Kavanaugh’s opinion?) The best summary of the situation comes from Elie Mystal:

According to Brett Kavanaugh and the conservatives, it’s only bribery if it comes from the Bribérie region of France. Everything else is just sparkling corruption.

They allowed local governments to criminalize homelessness. Again, that’s not said in so many words, at least not until you get to Justice Sotomayor’s dissent. The case centers on a law in Grants Pass, Oregon that “prohibits activities such as camping on public property or parking overnight in the city’s parks”. Here’s why Sotomayor thinks that’s a problem:

Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is “cruel and unusual” under the Eighth Amendment.

But Justice Gorsuch says the law doesn’t punish homelessness, because the law applies to everybody, not just the homeless.

Grants Pass’s public-camping ordinances do not criminalize status. The public-camping laws prohibit actions undertaken by any person, regardless of status. It makes no difference whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.

So if Elon Musk unrolled his Patagonia sleeping bag in a Grants Pass park, he’d be arrested too. What better illustration could there be of what Anatole France wrote in 1894?

In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.

In his concurrence, Clarence Thomas wants to go further than Gorsuch and overturn the precedent this case is based on. In other words, you should be able to criminalize someone’s status.

Gorsuch and Sotomayor paint very different pictures of what Grants Pass is trying to accomplish. Gorsuch mostly ignores Grants Pass itself, but talks about other cities with similar laws. (Notice the pattern: The conservative justices want to discuss anything other than the specific facts of the cases at hand.) Cities like San Francisco, Gorsuch claims, are making a good-faith attempt to help the homeless by getting them into shelters, using anti-camping laws as the stick in a carrot-and-stick approach. But Sotomayor sees Grants Pass hoping the homeless will leave and become some other town’s problem:

For someone with no available shelter, the only way to comply with the Ordinances is to leave Grants Pass altogether. … The Grants Pass City Council held a public meeting in 2013 to “identify solutions to current vagrancy problems.” The council discussed the City’s previous efforts to banish homeless people by “buying the person a bus ticket to a specific destination,” or transporting them to a different jurisdiction and “leaving them there.”

That was unsuccessful, so the council discussed other ideas, including a “ ‘do not serve’ ” list or “a ‘most unwanted list’ made by taking pictures of the offenders . . . and then disseminating it to all the service agencies.” The council even contemplated denying basic services such as “food, clothing, bedding, hygiene, and those types of things.” … The council president summed up the goal succinctly: “[T]he point is to make it uncomfortable enough for [homeless people] in our city so they will want to move on down the road.”

They grabbed power away from federal agencies and claimed it for themselves. The Chevron doctrine is a legal principle that you will probably never run into in your personal life, but it has a bankshot effect on everything the government does. What’s at stake here is Congress’ ability to write open-ended laws whose details can be nailed down by the relevant federal agencies. Here’s an example I gave in January:

A typical example is the Clean Air Act. The CAA was first passed in 1963 and then overhauled in 1970. It established air quality standards (NAAQS) for a few well-known pollutants like carbon monoxide, sulfur dioxide, and lead, but then it defined a general category of “hazardous air pollutants” (HAPs) made up of other gases and particulates that “threaten human health and welfare”. It tasked the EPA with making and maintaining a list of HAPs and creating emission regulations for controlling them.

Hold that in your mind for a minute: In passing the CAA, Congress banned or controlled substances that the members of Congress had never even heard of. That’s how the regulatory system works.

If the CAA didn’t work that way, Congress would have to pass a new law every time some company created a new pollutant. Corporations move faster than Congress does, so our lives would be constantly in danger. (Plus, corporations can now give “gratuities” to congressmen who procrastinate on new laws. See above.)

In 1984, the Supreme Court decided the Chevron case, establishing the principal that if a law Congress wrote is vague about something, and if an agency’s interpretation of that vagueness is reasonable, then courts should defer to the agency’s interpretation. This deference makes sense for two reasons:

  • Courts can’t match the expertise assembled in federal agencies like the EPA or the FDA.
  • Federal agencies are overseen by presidents, who can be voted out of office. Courts are overseen by judges appointed for life.

The Chevron precedent has stood for forty years. Friday the Court tossed it out, without identifying any significant problem they were solving.

I didn’t manage to read the whole opinion, so I refer you to Joyce Vance.

Want to know if you can use the abortion drug mifepristone? Despite studies confirming the drug is safer than Viagra and Tylenol, that decision is up to Judge Matthew Kacsmaryk in Amarillo, Texas. If he decides the FDA was wrong to approve it, well then, he can deny women access to medication abortion. What happens if a company that builds airplanes objects to an agency decision that requires them to use, say, six bolts to attach an engine to a plane? They can go to court and make their case to a federal judge. And then, that judge—a lawyer, not an engineer—gets to decide how it will work. The arbitrary action the court expresses concern agencies might take is replaced by arbitrary action from far less qualified federal judges—possibly shopped for in the infamous one-judge-divisions like the one that gave us the mifepristone case. Do you feel less safe suddenly?

Set up a future showdown on abortion — after the election. So Idaho law only allows abortions that save a woman’s life, while a federal law (EMTALA — the Emergency Medical Treatment and Labor Act) mandates that hospitals receiving federal money (i.e. Medicare) stabilize any patient who shows up in their emergency rooms, including pregnant women who will suffer serious health consequences without an abortion.

But there’s a gray area, where a woman faces serious consequences but isn’t about to die. For women who fall into that gap, state law forbids what federal law mandates. A district court issued an injunction allowing the abortions, on the principle that federal law preempts state law. In January, the Supreme Court stayed that injunction, leaving the Idaho ban in place. Justice Kagan lays out the consequences of that move:

With that stay in effect, Idaho could enforce its abortion ban even when terminating a pregnancy was necessary to prevent grave harm to the woman. The on-the-ground impact was immediate. To ensure appropriate medical care, the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in the prior year (when the injunction was in effect). … Those transfers measure the difference between the life-threatening conditions Idaho will allow hospitals to treat and the health-threatening conditions it will not, despite EMTALA’s command.

So this week the Court’s three liberals (Kagan, Sotomayor, and Jackson) got together with three conservatives (Roberts, Barrett, and Kavanaugh) to lift the stay and rule that the Court should not have gotten involved in this case yet.

That’s good as far as it goes; for the next few months, Idaho hospitals can stop airlifting women to Oregon or wherever. But the case is likely to come back next term. And even if it doesn’t, other states’ abortion laws also conflict with EMTALA.

So both Jackson and Alito want to know why the case can’t be decided now: The Court has heard all the arguments and knows everything it’s going to know when the case comes back. (Both think the proper decision is obvious, but they disagree about what it is.)

But it looks like Roberts, Barrett, and Kavanaugh have made a political move: Denying health care to women with serious pregnancy-related health problems is really unpopular, so pushing such a decision to the other side of the election helps Trump and other Republicans. “It is so ordered.”

Let some January 6 rioters off the hook. This case, Fischer, looks more complicated than the others, because even though the margin (6-3) is familiar, two justices have switched sides: Barrett joined the liberals and Jackson joined the conservatives.

This fell off my stack, so here’s Amy Howe’s summary:

The Supreme Court on Friday threw out the charges against a former Pennsylvania police officer who entered the U.S. Capitol during the Jan. 6, 2021, attacks. By a vote of 6-3, the justices ruled that the law that Joseph Fischer was charged with violating, which bars obstruction of an official proceeding, applies only to evidence tampering, such as destruction of records or documents, in official proceedings.

Friday’s ruling could affect charges against more than 300 other Jan. 6 defendants. The same law is also at the center of two of the four charges brought by Special Counsel Jack Smith against former President Donald Trump in Washington, D.C.

In other words, obstructing an official proceeding physically, by taking over the building, isn’t covered by this law.

I still don’t grasp the impact of this ruling. Several lawyers writing for MSNBC claim only a small number of January 6 defendants will be affected, and even the ones who are won’t go free, since they were convicted of other offenses as well. Many articles claim this interpretation will help Trump in his January 6 case, but the MSNBC article claims the opposite. It will take a while for me to sort this out.

By weeklysift | Posted in Articles | Also tagged | Comments (10)

The Limits of Originalism

June 24, 2024 – 10:05 am

The Rahimi case isn’t getting a lot of coverage, because (as an 8-1 victory for common sense), it doesn’t make good clickbait. But the conservative judges are having an important discussion about the future of originalism.

Imagine you’re at a dinner party. On your way back from the bathroom, you happen to overhear a snatch of conversation from the kitchen: Your hosts have been discussing whether to poison your meal, and decide not to.

How should you feel about that? Relieved? Poisoning is a bad thing, and it’s not going to happen to you tonight. Angry? Why? Murder is wrong, and your hosts have decided not to do it. They’ve made the moral choice. Good for them.

Or maybe you focus on this question: Why were they having that conversation to begin with?

The Rahimi case. Now you can imagine how I feel about the outcome of United States v Rahimi, which the Supreme Court announced Friday. They decided that Congress does have the right to pass laws that take guns away from domestic abusers who are under restraining orders. Or, looking at it from the other side of the gun, men who have been judged by a court to pose a credible threat to their intimate partners do not have an absolute right to bear arms.

Good job, justices. With only one dissent (corrupt Clarence Thomas) they made the right call. Good for them. But why were they having that conversation to begin with? Why did anyone think that in one of the most obvious potential-murder situations imaginable [1], our legal system is banned from offering a woman even the simplest kind of protection?

In particular, why did anyone think it might be unconstitutional to disarm Zackey Rahimi, who perfectly exemplifies why domestic abuse laws exist? Rahimi didn’t just threaten the estranged mother of his child with a gun and then violate the restraining order she got for her own (and her child’s) protection, he also was involved in several other shooting incidents, some related to his personal anger-control issues and others stemming from his professional role as a drug dealer.

That guy. Even worse, Rahimi was making what is known as a facial challenge to the law disarming domestic abusers. In ordinary English, the law is unconstitutional on its face; there are no conceivable situations in which the law could be applied without violating the Second Amendment.

Why would anybody take that claim seriously enough that the Supreme Court should have to decide it?

Two reasons, really:

  • Two years ago, in the Bruen case (which was announced almost simultaneously with the Dobbs decision reversing Roe v Wade), the Court proclaimed a new test for Second Amendment constitutionality that called nearly all American gun laws into question.
  • And then in 2023, one of the few courts even more batshit crazy than the Supreme Court itself (the Fifth Circuit Court of Appeals) applied the Bruen test to Zackey Rahimi and ordered the government to give him back his guns.

So that’s where we were as of Thursday: Unless the Court acted, Rahimi was getting his guns back, and the mother of his child had just better watch out. Not only wouldn’t the government help her, it was constitutionally barred from ever doing so, no matter what Congress or any other elected officials might think.

The Bruen test. You’ll never guess who wrote the majority opinion in Bruen. OK, maybe you will: corrupt Clarence Thomas, with the backing of the other five conservative justices, including all three of the Trump justices. The heart of that ruling is this:

[W]e hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

In a hearing before the Fifth Circuit, the government offered various colonial or founding-era analogues of the domestic abuse law in question, and the judges found none of them quite analogous enough. Justice Sotomayor’s concurrence with Friday’s decision explained why this might be:

Given the fact that the law at the founding was more likely to protect husbands who abused their spouses than offer some measure of accountability, see, e.g., R. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L. J. 2117, 2154–2170 (1996), it is no surprise that that generation did not have an equivalent to [the law Rahimi has challenged]. Under the dissent’s [i.e. Thomas’] approach, the legislatures of today would be limited not by a distant generation’s determination that such a law was unconstitutional, but by a distant generation’s failure to consider that such a law might be necessary. History has a role to play in Second Amendment analysis, but a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy.

Putting her point more bluntly: When the Second Amendment was ratified in 1791, women were not really people, and wives in particular were subject to the whims of their husbands in ways we no longer accept. So you’re not going to find much in the way of domestic-violence legislation from that era, much less laws disarming domestic abusers. But that’s because the founding generation just didn’t think domestic violence was a problem worthy of government action, not necessarily because they endorsed the right of dangerous people to be armed.

But the Fifth Circuit didn’t look at it that way: Nobody disarmed the Zackey Rahimis of 1791, so we shouldn’t be able to disarm Zackey Rahimi today.

Originalism. Like Justice Alito’s majority opinion in Dobbs, Thomas’ opinion in Bruen (and his dissent in Rahimi) is an example of a method of constitutional interpretation known as originalism. All six conservative justices claim to be originalists. In his Rahimi concurrence, Justice Kavanaugh restates the fundamental notion of originalism:

The first and most important rule in constitutional interpretation is to heed the text—that is, the actual words of the Constitution—and to interpret that text according to its ordinary meaning as originally understood.

Originalism was popularized by the late Justice Anton Scalia, who spent most of his career in the minority, writing rousing dissents. But in recent years, originalists have become the majority on the Court, raising a significant issue: How do you turn a critical theory into a governing theory? [2] Most of the time, Scalia didn’t have to worry about the practical implications of his views, because they weren’t going to be adopted anyway. Now, though, originalists have to be concerned with consequences, like arming the Zackey Rahinis of the world.

In arguing against originalist interpretations, it’s important to understand precisely where originalists are and aren’t coming from. The point isn’t that the Founders were divinely inspired lawgivers like Moses (though some conservatives do believe this). Originalism says something more fundamental about the basis of law in a constitutional democratic republic like the United States: For laws to be binding on the People, the People must at some point have accepted that burden. So any legitimate originalist analysis [3] revolves around the questions: When did the People accept this restriction or give the government this power?

So, for example, look back at another case in this term: Cargill, the bump-stock case. That case revolves around two questions: When did the American people give up their right to own machine guns? And what did they think a “machine gun” was at that time? The answer to the first question is that (through their elected representatives) they gave up that right in the National Firearms Act of 1938. The NFA contains a definition of machine gun, which the justices then argue about.

The blurring effects of time. The root problem with originalism is that a text’s “ordinary meaning as originally understood” is way more complicated than Kavanaugh makes it sound. Individual people living in the same era think at different levels of abstraction. So consider the “bear arms” phrase in the Second Amendment. To one American living in 1791, the Amendment might apply abstractly to all “bearable arms” — any weapon that can be carried by one person. [4] His neighbor might have a more specific way of thinking, and so picture “arms” as the weapons he has seen or handled personally: flintlocks, sabres, and bows. A third citizen might think about the effects of arms: To him, the Amendment applies to anything that does roughly the same amount of damage as flintlocks, sabres, and bows. He might not have been picturing African blowguns, but if you described them to him he would probably see them as “arms” as well.

At that one particular moment in 1791, those three ways of thinking were in alignment: The arms that could be borne were flintlocks, sabres, and bows, but not cannons. The three citizens have different mental notions, but they will agree on any specific case that comes up.

But as the world changes, notions that once agreed come out of alignment. Transport our three founding-era citizens to World War II and show them a bazooka. The first citizen sees a weapon bearable by one person, the second sees something totally unlike any weapon he has used, and the third sees something more analogous to a cannon than a flintlock. So what is the “original meaning” of Second Amendment “arms” as applied to a bazooka?

That’s why our jurisprudence is so inconsistent in its originalism. (My advice: Don’t try to buy a bazooka.) Take the NFA of 1938 for example. Our first citizen looks at a 1938 Thompson submachine gun (or our era’s combat-ready M-16) and sees a bearable weapon, so to him the NFA’s ban on such weapons is clearly unconstitutional. But none of our current “originalist” justices took that position in Cargill.

The blurring legal environment. Sometimes what changes isn’t technology, but the context of other laws that surround a given law. That’s what happened with same-sex marriage. The Obergefell decision that legalized same-sex marriage nationally in 2015 was based on the 14th Amendment, which was ratified in 1868. [5]

But did the people of 1868 or their elected representatives realize they were legalizing same-sex marriage? Of course not. In the legal environment of the time, same-sex marriage didn’t even make sense. At the time, husbands and wives had different rights and responsibilities under the law, so “Which one of you is the husband and which one is the wife?” was a legitimate question. Also, men had more legal rights than women — most obviously the right to vote, but many others as well. So all opposite-sex households had one vote, but a same-sex household had either zero votes or two. How could that be justified?

By 2015, though, all those legal problems had gone away, for reasons that had nothing to do with homosexuality. Under the law, there are two spouses with legal equality, and neither role requires any special rights only available to one gender or the other. So the only reason to write marriage laws restricted to opposite-sex couples is prejudice against same-sex couples — something “equal protection of the laws” doesn’t allow.

Americans of 1868 couldn’t have foreseen how “equal protection of the laws” would apply to marriage in 2015. But they understood what “equal protection” meant as a principle, and they agreed to it.

Back to Rahimi. Except for Thomas himself, all the justices — liberal and conservative alike — recognize that the originalist logic of Bruen has led the Court to the edge of an abyss: Rahimi should get his guns back. This obviously is a bad outcome, and who knows what worse monsters might also regain their arms and go on to murder their intimate partners or ex-intimate partners? This result is not only bad in itself, but — like Dobbs — will incite a voter backlash against the Court, and against the Republican Party that appointed this conservative majority.

That majority, above all, is partisan. Thomas and Alito clearly want to retire, but will only do so if a Republican president can replace them. The others (with the possible exception of Barrett, who hasn’t done enough yet to earn my negative judgment) enjoy being in the majority and don’t want a re-elected President Biden to shrink that majority by appointing liberals.

Possibly even worse is the effect Bruen has had on the lower courts. The standard of keeping the laws “consistent with the Nation’s historical tradition of firearm regulation” is not only impossibly vague, but the example Bruen sets — cherry-pick history until you get the result you want — invites the worst kind of judicial activism.

Justice Jackson (who hadn’t joined the Court yet when Bruen was decided) lays this out as politely as possible.

This case highlights the apparent difficulty faced by judges on the ground. Make no mistake: Today’s effort to clear up “misunderst[andings],” [from Roberts’ majority opinion] is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them.

The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen’s madness. It isn’t just that Bruen’s history-and-tradition test is burdensome (though that is no small thing to courts with heavier caseloads and fewer resources than we have). The more worrisome concern is that lower courts appear to be diverging in both approach and outcome as they struggle to conduct the inquiry Bruen requires of them. Scholars [in an amicus brief on this case] report that lower courts applying Bruen’s approach have been unable to produce “consistent, principled results,” and, in fact, they “have come to conflicting conclusions on virtually every consequential Second Amendment issue to come before them”.

So Bruen needs to be fixed somehow, or at least reined in. But how?

Liberal interpretation. Everyone on the Court is an originalist up to a point: If the text of a law is clear, if its “ordinary meaning as originally understood” can be ascertained, and the varied understandings of people at the time are still more-or-less in alignment, then that well-understood text should be respected. If such a law needs to be fixed according to our current notions of justice, Congress should do it, not the Court.

Conservatives claim liberals don’t believe this [6], but we do.

On most issues controversial enough to reach the Supreme Court, though, liberals recognize that there is no “original understanding” that covers the contemporary situation. (See the examples above.) And yet there is a case that needs to be decided: Rahimi either gets his guns back or he doesn’t.

To state the liberal view more simplistically than probably any of the current liberal justices would: Liberals want to give the original lawmakers the benefit of the doubt. Maybe they couldn’t have foreseen the current situation, but they didn’t intend for us to do something stupid with their words. And while much has changed since the 1700s — women and the non-European races have become people, as Sotomayor points out — certain abstract notions of justice are closer to timeless, and are still more-or-less the same. So we can use those shared values to update our interpretation of the text.

Ideally, the most important texts come up fairly often, so that the record of judicial precedents represents a continuous updating rather than an abrupt break with the past (as Dobbs, Bruen, and Heller were). Like the laws themselves, precedents should be read generously, because the justices of the past also wouldn’t want us to do something stupid with their words.

Of course, this approach requires that current justices have some measure of wisdom and aren’t too humble to use it. That openly confident wisdom is anathema to originalists, who insist that any application of contemporary wisdom must happen covertly, by manipulating history and then claiming to follow it.

Originalism trying to fix itself. Every conservative justice but Alito wrote an opinion on this case. Thomas’ lonely dissent doubles down on Bruen: If the logic of Bruen sends us over a cliff, then here we go. But the other four aren’t willing to jump with him, and feel obligated to explain why not. All of them are sneaking some version of liberal interpretation into their thinking, while denying that they do so.

Roberts’ majority opinion claims that a law can be “consistent with the Nation’s historical tradition of firearm regulation” even if there is no exact parallel, as long as it is analogous to laws from the colonial or founding eras. How close does the analogy need to be? How many parallel regulations establish a “tradition” rather than an anomaly? He doesn’t precisely say. The point is to get enough wiggle room that we don’t have to give back Rahimi’s guns, an outcome that violates “common sense”.

Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.

Such an appeal to contemporary common sense clearly doesn’t sit well with the other conservative justices, who have to write concurrences to put their own spin on it. Kavanaugh’s opinion in particular is a long and fairly dull exposition of originalism that rarely mentions the current case. (As I read, I kept saying “Dude, write a textbook.”) To me, he seems to need to repledge his fealty to originalism precisely because he knows he’s violating it.

The only conservative concurrence that seems honest to me is Barrett’s. (I am developing a grudging affection for Barrett. She’ll probably disillusion me soon, but I have to give credit where it’s due.) Like Jackson, she recognizes that lower courts have had trouble applying Bruen, as well as the inherent limitations of the historical method Kavanaugh extols at such length.

[I]mposing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us “a law trapped in amber.” And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a “use it or lose it” view of legislative authority. Such assumptions are flawed, and originalism does not require them.

“Analogical reasoning” under Bruen demands a wider lens: Historical regulations reveal a principle, not a mold.

Examining founding-era firearms regulations reveals the “contour” of the right the Founders thought they were recognizing, but doesn’t always lay down its precise terms. Barrett recognizes that being a judge requires applying a certain amount of wisdom to past examples, to draw out the abstract principles behind them. It’s not just “calling balls and strikes” as Roberts claimed at his confirmation hearing and Kavanaugh endorsed in his concurrence. She ends up deciding that the majority opinion in this case “settles on just the right level of generality”, and so she concurs.

I read that as a statement of confidence in her contemporary wisdom, not an effort to hide her judgment behind a fog of historicism.

Conclusion. The Rahimi case is not getting a lot of press coverage, largely because it came to a common-sense conclusion: Rahimi (and other malefactors like him) shouldn’t be armed. It is within the power of Congress and state legislatures to make such decisions.

But the conservative judges are subtly arguing about how to sneak contemporary wisdom (sometimes disguised as “common sense”) back into judicial reasoning. As a governing theory, originalism will have to recognize that the wisdom of the past does not solve all our problems. At some point, judges have be judicious.

[1] According to the Department of Justice:

Of the estimated 4,970 female victims of murder and nonnegligent manslaughter in 2021, data reported by law enforcement agencies indicate that 34% were killed by an intimate partner … Overall, 76% of female murders and 56% of male murders were perpetrated by someone known to the victim. About 16% of female murder victims were killed by a nonintimate family member—parent, grandparent, sibling, in-law, and other family member

[2] This problem parallels the one in the House of Representatives, where MAGA rebels suddenly have real power.

[3] I use the word legitimate because, as I’ve stated in other posts, I don’t believe that most originalist arguments are made in good faith. By cherry-picking historical examples and engaging in opportunistic reasoning no historian studying that era would vouch for, a judge can almost always find an “originalist” justification for whatever conclusion he wants to come to.

Justice Alito’s majority opinion in Dobbs, in my opinion, was an example of this kind of bad-faith historicism. And so was Justice Scalia’s opinion in 2008’s Heller case, which (as Justice Jackson puts it in her concurrence) “unearthed” a new individual right to bear arms, upsetting a consensus interpretation of the Second Amendment that Justice Breyer’s dissent in Heller claimed “ha[d] been considered settled by courts and legislatures for over two centuries”.

Justice Kavanaugh can’t admit that Scalia invented his Heller interpretation out of nothing, but does say: “Second Amendment jurisprudence is still in the relatively early innings, unlike the First, Fourth, and Sixth Amendments, for example. That is because the Court did not have occasion to recognize the Second Amendment’s individual right until recently.”

[4] This is the position Justice Scalia laid out in Heller:

the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

[5] Justice Kennedy’s majority opinion rooted his argument in the 14th Amendment’s Due Process clause, but (like some of the concurring justices) I think the 14th Amendment’s guarantee of “the equal protection of the laws” is a cleaner justification.

[6] Kavanaugh’s concurrence warns against “an approach where judges subtly (or not so subtly) impose their own policy views on the American people”, which he sees as the only alternative to originalism’s historical method of interpreting “vague” text.

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