As promised last week, my latest FindLaw column argues that there's almost no way for the Supreme Court to strike down the challenged law in D.C. v. Heller---as it appears inclined to do---without addressing both the standard of judicial review and the question whether the Second Amendment is incorporated against the States. Unless that is, the Court writes the sort of opinion that it wrote in several important cases last Term, purporting to adhere to precedents but in fact disregarding them or making other, equally unpersuasive moves.
Here I'll raise a question about CJ Roberts and the Roberts Court more broadly. What is attractive to him/them about this brand of faux minimalism (which even Justice Scalia decried last Term in roughly the same way)? One possibility is that Roberts, Alito and occasionally Kennedy are in fact maximalists who feel the need to pose as minimalists to maintain an image of moderation consistent with their statements at their respective confirmation hearings. But that's cynical and probably inaccurate. (It's also pretty clearly wrong about Kennedy, who often writes maximalist opinions.) I suspect that Roberts and Alito (and this was true of Justice O'Connor too) actually believe in the virtues of minimalism and so strive to write minimalist opinions. But that hypothesis leaves us with an even greater mystery: Given that these people are excellent lawyers, how can they fool themselves that an opinion inconsistent with earlier precedents doesn't overrule those precedents?
I actually don't have a hypothesis for that question and so invite discussion in the comments. Meanwhile, perhaps I'll be proven wrong in Heller and the Court will fully deal with the review standard and incorporation questions. And actually, I'd PREFER a somewhat disingenuous opinion if it leaves the Second Amendment unincorporated, as that would leave cities and states around the country free to enact strict gun control laws if they see fit---an approach that should at least have some appeal to those who value federalism.
Posted by Mike Dorf