McConnell, Gerken and I ended up mildly disagreeing about the frequency of backlash (though agreeing that none of us really knew) as well as mildly disagreeing about how, if at all, lawyers and judges ought to take account of predicted backlash in their respective decisions. For those interested in the precise contours of this and other disagreements, I suggest that you watch this space for an announcement regarding the C-SPAN airing of the conference. (The conference was recorded but no word yet on when it will be shown.) Here I want to reframe my skepticism about backlash with a different example: gun control.
As reported by Linda Greenhouse, the Court will very soon decide whether to grant cert in the D.C. gun case, Parker v. District of Columbia. Given the existence of a pretty clear circuit split and the fact that both sides favor review, a grant seems likely. As Greenhouse says, if the Court takes the case, it could find itself "back on the front lines of the culture wars with an intensity unmatched even by the cases on abortion and race that defined the court’s last term." Conventional wisdom (with which I agree) then holds that a victory for the District of Columbia, i.e., a loss for the gun rights side, would benefit the Republican candidate in the general election, because it would mobilize NRA types to vote on this issue.
But is the converse true? Would a victory by Parker--i.e., a decision constitutionalizing the gun question---mobilize those who favor gun control in the way that the decisions constitutioalizing abortion and gay rights mobilized those who favor abortion control and (for lack of a better term) "gay control?" I tend to think not. Instead, if I had to bet on the matter, I would say that the Parker decision will benefit Republicans no matter which way the Court rules. Any ruling by the Court will bring attention to the gun issue, which is helpful for politicians who favor gun rights both because the electoral map makes that position crucial with swing voters in purple states and because NRA types are much more likely to consider this a make-or-break issue than are those who favor gun control.
More broadly (and more speculatively), I tend to think that cultural conservatives simply care more about "culture war" issues than liberals do. Accordingly, Judge McConnell may be right in suggesting that as a litigation strategy, liberal activist groups should worry about backlash, but he can't be right about the normative implications for judges: If backlash only happens when the Court issues "liberal" rulings, then a judge who worries about backlash would worry about issuing liberal rulings but not worry about issuing conservative rulings. Such a decision rule can hardly be defended on grounds of judicial restraint.
Finally, I want to inoculate myself against a possible critique of the foregoing analysis. No doubt some conservatives will say that the difference between abortion and gay rights decisions, on the one hand, and a putative decision recognizing gun rights, on the other hand, is that the latter would be clearly rooted in the text of the Constitution, while the former are not. To which I say: hogwash. That's exactly the question that's at issue in Parker: What does the Second Amendment mean? Does it have anything at all to do with individual rights? Or, as I put the point in the conclusion to a 2000 law review article:
What infuriates the individual right scholars who oppose gun control--and embarrasses those who favor it--is their perception of a political double-standard. Even if we grant that the Second Amendment's text does not unambiguously guarantee an individual right of firearm ownership and possession, they say, surely there is greater textual support for such a right than for other rights the Court has recognized, such as the right to contraception, the right to abortion, or the right of minor first cousins to live together with their grandmother.Note the understanding of constitutional interpretation implied by this criticism: surrounding the core of each textual provision are concentric circles of related values; if a right is recognized at some distance from the core, then a fortiori, all rights at lesser distances must be recognized as well. Thus, if contraception lies a distance X from the Fourth Amendment (and other provisions), recognition of a constitutional right to contraception implies recognition of a right of armed self-defense, provided that such a right lies a distance less than X from the Second Amendment.Although this view of constitutional interpretation finds some superficial support in the Court's discussion of “penumbras” and “emanations” in Griswold v. Connecticut, it is deeply flawed. The right to scream profane threats at passersby is arguably closer to the text of the First Amendment than is the right to publish on the Internet a statement of political support for a presidential candidate; the former is literally “speech,” while the latter neither employs vocal chords nor a printing press. Yet no one would seriously argue that protection of the latter implies protection of the former. To the extent that talk of penumbras and emanations leads us to think that constitutional interpretation in hard cases is a matter of measuring the distance from the text, it is simply another unsuccessful effort to banish value judgments from constitutional interpretation.The existence of a large body of Supreme Court decisions recognizing constitutional rights that are not expressly articulated in the text means that we cannot rule out the individual right view of the Second Amendment on textual grounds alone. The champions of the individual right view are entitled to have their arguments heard. However, that does not mean that they are entitled to have their arguments accepted, unless, as judged by the admittedly somewhat value-laden criteria of constitutional interpretation, the arguments are convincing. As I have endeavored to show throughout this Article, on the whole these criteria point away from the individual right interpretation.
Posted by Mike Dorf