As I mentioned yesterday, the petitioner’s brief in McDonald v. City of Chicago written by Alan Gura asks the Supreme Court to overrule The Slaughterhouse Cases and adopt a very different interpretation of the Fouteenth Amendment’s Privileges or Immunities Clause. The obvious question is, how many Justices will agree? My guess: only one. In this post, I want to peer into my crystal ball and see how each of the Justices (or group of Justices) will react to Gura’s argument.
1) Justice Thomas. I suspect Justice Thomas is Gura’s only vote. Justice Thomas more or less took Gura’s position in his dissent in Saenz v. Roe a decade ago. He’s likely on board today.
2) Justice Scalia. In contrast to Justice Thomas, Justice Scalia probably won’t agree with the Gura brief in light of stare decisis. In speeches about originalism and stare decisis, Scalia often uses the 14th Amendment incorporation doctrine as an example of a line of cases that he thinks was wrong but that he won’t overrule because of all the reliance interests built up around it over the years. If Scalia won’t overturn the 50-year old incorporation doctrine even though he thinks it was wrong, I doubt he’ll want to overturn the 116-year old Slaughterhouse Cases even if the brief convinces him they were incorrect. That’s particularly true because the Gura brief advocates a version of privileges or immunities that is so vague it would vest tremendous new discretion in judges (more on that below). I just don’t think Scalia is going to want to do that.
3) Chief Justice Roberts and Justice Alito. Chief Justice Roberts and Justice Alito are also sympathetic to originalism, and may harbor the sense that Slaughterhouse and the incorporation cases were both wrong as an original matter. But I don’t think they’re revolutionaries, and the brief calls for a revolution.
You can read the whole post here.
