One of the problems with blogs is that they deal with immediacy and often get far ahead of themselves when it comes to reflection. Thankfully, we have Adam Liptak at the New York Times to take up the rear, reminding us far after the fact to take stock of the pressing issues in the law. And so he does again in his latest Sidebar Column on the most important case of the decade, District of Columbia v. Heller.
So far, Heller is firing blanks
That’s pretty clear. With the vast attention given Heller, by interest groups, legal beagles (mavens, as Charon calls them, or thought leaders, as O’Keefe likes to say), not to mention every constitutional scholar across the nation, no case in the past decade has received the attention and energy of Heller. For what?
The true believers will tell you to give it time. Eventually, courts, both state and federal, across the land will come to honor the decision stating, more or less, that possession of a weapon is a fundamental right under the Second Amendment to the Constitution. Ten, maybe twenty, years from now, it will change everything. That’s what they want to believe. Of course, they put so much into this decision, this argument, that it’s painful to accept that they won the battle, but nobody bothered to notice the war.
Having watched the impact of the Supreme Court for almost 3 decades, and having a passing familiarity with some of the decisions made before it dawned on me to pay extemporaneous attention, I have reached an awkward conclusion. Despite the supposed importance of a pronouncement of the Supreme Court, it has had extraordinarily little impact on the landscape of American law in the past two decades. It has, in essence, become irrelevant.
What the heck are you talking about? This is the Supreme Court! Of course it’s relevant. So you mutter as you read this. I’ll explain.
As any practicing lawyer knows all too painfully well, the nuances that we argue about the merits of appellate decisions, and most particularly Supreme Court decisions, are almost laughably ignored at the trial court level. Trial judges show no interest in the fine points of the law; they sweep with a broad brush, and they do it as fast as they can. They have neither patience nor interest in hearing us argue the niceties of the auto exception to the 4th; it’s a car, you lose. That’s the predominant reaction.
The trick at the trial level isn’t knowing the nuance of the law, but getting the judge to give you the 90 seconds necessary to get the words out of your mouth before he denies your motion. So all that studious effort, the detailed and footnoted memoranda, is an exercise in rhetoric if no one is listening. Tell the judge “the Supreme Court said” and watch his eyes glaze over.
But the Supremes have largely done this to themselves. Part of the problem derives from their split decisions; a stream of 5-4 rulings means that precedent can flip with the next political wave, rendering decisions transient rather than precedent. Worse still, over the past two decades, the Supremes have imbued its pronouncements with so many wiggle words, so many qualifications, so little clarity, that no one is really clear what they are trying to tell us after the decision is finally issued.
Consider Booker, its antecedents and its progeny. How many decisions did it take for the Supreme Court to finally get district and circuit judges to accept the premise that the Sentencing Guidelines were, indeed, only advisory and not mandatory. What of the thousands and thousands of defendants who were sentenced while the rules had purportedly changed but no one cared?
Putting it in context, Booker sought to undo a congressional scheme that had been held unconstitutional by every court across the country until the Supremes held the Guidelines constitutional in Mistretta in 1989. If they were merely advisory, wouldn’t it have been a better idea to say so 20 years ago? Even so, the lower courts continued to slavishly apply the guidelines until the Supremes finally provided clarity. And when a district judge varied, the circuit would make sure she paid for it,
In the end, Booker merely “corrected” what the Supremes did in Mistretta twenty years earlier. And this was hailed as a major breakthrough, rather than proof of its failure to fulfill its function in our society. So many human beings sentenced to so many years in prison under the rote application of a grid, all because the Supreme Court dropped the ball at the beginning of the game.
Some, primarily Supreme Court sycophants, excuse this as judicial modesty. Another fine euphemism to cover a screw-up. How about Supreme Court clarity? Don’t open the door to disaster and then tell us everyone is doing it all wrong 20 years later. Think it all through in the first place. Or at the very least, once you recognize that the decision missed a critical piece, or that no one understands what the Court was saying, correct it as quickly as possible.
But the Supreme Court has further shown that its isolation, its very impressive building in Washington with its somber paneled rooms, keeps its justices from recognizing what more ordinary people (if one can call any federal judge ordinary) see. Consider the Supreme Court’s first venture onto Youtube in Scott v. Harris, wherein Justice Scalia said during oral argument that it was “the scariest chase I ever saw since ‘The French Connection.’ ” Of course, this wasn’t the district judge or circuit’s view of life on Georgia’s highways, but surely someone riding in the back of a Washington limo knows more about dangerous driving than the local yokels.
“Eight of the jurors on this court,” Justice Stevens said, “reach a verdict that differs from the views of the judges on both the district court and the court of appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.”
Why bother going through the motions when the Supreme can just watch the video and play de novo jury? So much for judicial modesty. Perhaps it shows that our justices are just frustrated trial judges, recognizing how little they affect anything and desperate for some hands-on evidence.
And so we return to the Heller decision, which includes the ignominious Section III paragraph penned by the most intellectually honest judge since William H. Rehnquist.
For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
Why, oh why, go through all the trouble of changing everything about the Second Amendment only to take it back with this doctrinally bankrupt paragraph? For all the effort put into Heller, this lone paragraph, unhinged from any of the theories upon which scholarly people ponder, did as much to assure that it would be anything but earth-shattering.
So in an odd way, Heller has driven home a critical constitutional point, just not one about the Second Amendment. It has, however, made clear that the focus on the Supreme Court has produced so little of consequence that the carefully selected words, parsed by academics, mean nothing in the trenches where real people struggle.
The Supreme Court has made itself irrelevant. It’s a shame because we could really use a Supreme Court as final arbiter of the Constitution by providing clear and complete direction so the rest of us have a clue what the rules are. Instead, we are all doomed to turn to Youtube for answers, or be left with nothing but a meaningless void.