[S]hould 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.
(Emphasis supplied.)Levinson relishes 7th Circuit Judge Frank Easterbrook's opinion on incorporation of the Heller rights because it brings forth all the problems and dissonance that incorporation presents to extreme conservatives. Levinson writes:
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 tradition.'" 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."
(Emphasis supplied.) Then what can it be reduced to? At one time, extreme conservatives reduced it to "judicial activism." Today? Not so much. Consider Kelo, by which the 5th Amendment takings clause was only in play because an "activist" Supreme Court determined that "ordered liberty" required that it be applied to the States via the Due Process Clause of the 14th Amendment. Without incorporation, there would be no Kelo case. What do extreme conservatives make of that? (Ironically, as Levinson notes, in Palko, Justice Cardozo rejected the incorporation of the 5th Amendment prohibition of double jeopardy. In 1969, the Court overruled Cardozo's Palko decision and incorporated the double jeopardy prohibition in Benton v. Maryland.)
Where do we go from here? I hope to a more honest discussion of the role of the Supreme Court and its essential political and policymaking role. Let's stop this pretend game that "judges do not make policy" and that the phrases "judicial restraint," "judicial activism," "originalists" and textualists" actually mean anything.
Let's stop pretending. And let's debate the issues.
Speaking for me only
