Senator Leahy put Supreme Court nominee Sonia Sotomayor on the spot today, and her answers don’t surprise me in the least. She paid the expected lip-service to the Heller decision:
Like you, I understand that how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller.
All well and good, but her answers regarding her decision in Maloney v. Cuomo are a bit questionable. As with Ricci v. DeStefano, she chose to defer rather blindly to precedent rather than risk making waves:
In Supreme Court province, the right is not fundamental. It’s a legal term. It’s not talking about the importance of the right in a legal term. It’s talking about is that right incorporated against the states. (…) My decision in Maloney and on any case of this type would be to follow the precedent of the Supreme Court when it speaks directly on an issue.
This is where it gets a bit slippery. There are some precedents that are so disastrous, so detrimental to liberty, that they must be defied, even before they are overturned. Two of those–the Slaughterhouse Cases and United States v. Cruikshank–will be tested before the Court next term.
As the 7th Circuit declared in 1982:
[S]ometimes later decisions, though not explicitly overruling or even mentioning an earlier decision, indicate that the Court very probably will not decide the issue the same way the next time. In such a case, to continue to follow the earlier case blindly until it is formally overruled is to apply the dead, not the living, law. Norris v. United States
It is not the province of a Supreme Court justice to hide behind precedent. In fact, the Supreme Court has preserved many of our liberties by overturning dangerous precedents that had too long been taken for granted. Just as Brown v. Board of Education overturned Plessy v. Ferguson and Loving v. Virginia overturned Pace v. Alabama, it is incumbent upon the Court to revisit and reverse past decisions that are plainly deficient.
At issue before the Court next year will be the incorporation of the 2nd Amendment under the 14th. The two primary precedents cited in opposition are plainly wrong. As the Cato Institute states in their brief:
The doctrine of stare decisis [“the decision stands”] is particularly inapt with respect to the Slaughter-House Cases, not only because of the extreme violence that opinion did to constitutional text and history, but because the purposes of the doctrine would not be served by refusing to revisit this particular mistake. (Mellor, Neily, McNamara (pdf), p. 7)
Just as the Slaughterhouse Cases defended the ability of state monopolies to disrupt private industry, the Cruikshank decision all but legitimized the Colfax Massacre, as well as facilitating years of further violence and oppression.
Are these really precedents that Judge Sotomayor thinks are worthy of preserving?
Whatever form it takes, the case before the Supreme Court next year will not be just about guns, or even the 2nd Amendment. It will address the entire history of incorporation, and either way the Court decides, it will have major ramifications throughout the body of civil rights law.
Let’s hope she’s up to it.
Edit: Orrin Hatch is questioning her this afternoon, and regarding Gonzales v. Carhart, she stated:
All precedents of the Supreme Court I consider settled law, subject to the deference to doctrine of stare decisis would counsel (…) if that precedent got the Supreme Court’s teachings wrong, it still would bind my court.
But here, she’s obviously talking about the role of the Circuit courts, and not SCOTUS.
In some cases, the court looks at the action and applies a stricter scrutiny to the government’s action. In others, if it’s not a fundamental right in the way the law defines that, but it hasn’t been incorporated against the states, then the standard of review is of rational basis. (…) Well, the government can remedy a social problem that it is identifying or a difficulty it’s identifying in conduct not in the most narrowly tailored way, but one that reasonably seeks to achieve that result. In the end, it can’t be arbitrary and capricious.
She goes on to defend the Maloney decision as somewhat strictly defined, as it focused on a particular weapon (chukka sticks). Essentially, she’s claiming she applied the strict scrutiny Scalia’s guidance in Heller seemed to require.