A proposal for reversing the internal operations of the Supreme Court of the United States.
Douglas W. Kmiec
Heller has already been identified as a test of the fidelity to precedent and restraint of the Roberts Court . That following oral argument, it seems possible if not likely that the Justices will disregard or minimize the significance of the militia clause of the Second Amendment and decide that there is a right of self defense that nowhere exists in the present text of the Constitution presents a unique challenge to that reputation. Putting aside whether that is or is not a defensible constitutional outcome, it is institutionally important for the outcome to be arrived at by means other than mere assertion.
When the Justices assemble around the table in the Chief’s outer office to decide D.C. v. Heller, they will follow the usual practice of voting on the outcome first and only then researching to justify and explain the outcome. With due respect to the Court’s tradition, that methodology is backwards. It is also subversive of public confidence in the Court. In a difficult case, like Heller, where the historical materials, linguistic analysis, and constitutional considerations are plentiful and largely being examined conscientiously for the first time, it is all the more important for the Court to follow the scientific method of doing the research and writing first before deliberation and vote. Reversing the process would have the benefit of: avoiding the appearance of elevating politics over law by actually avoiding the temptation to substitute politics for law. By engaging in the difficult work of legal research and analysis of existing text, history, and precedent before any of the members of the Court are asked to reach an ultimate determination, the Court can increase the odds of writing coherently and with greater unity. Those witnessing this morning’s oral argument know that task will be difficult. The analytical strands and possibilities from the meaning of the English Bill of Rights of 1689 to Mr. Madison’s expectations of draftsmanship to the deficiency (or not) of precedent, to the nature of trigger locks require Herculean effort to assemble into a proper answer. If they were fully candid, I venture the Justices would concede that at this moment they possess at best a tentative conclusion. Why vote before a fulsome examination of the law by reference to a complete exposition of what one member of the Court would offer as the most honest and defensible constitutional judgment. No one would buy a common appliance not knowing if it could be constructed to perform its intended task. Why ask Justices to accept opinions that have yet to be fully formed?
Who would write the opinion if a preliminary vote were not taken first for purposes of assignment? Quite simply, the Justice next in line for a writing assignment who is fully up to date with his or her work. Once and for all, the residual politics of confirmation would be set aside and only Court administration would govern. Yes, this would deprive either the Chief Justice or the senior associate justice, most often, John Paul Stevens, of the right of assignment, but that deprivation would be in pursuit of a higher order good to which I venture both the Chief Justice and Justice Stevens would subscribe: the elevation of the rule of law and the strengthening of the respect for the Court as an institution.