Is Heller Like Roe?

Yesterday's NY Times ran a story by Adam Liptak about how two prominent conservative federal appellate judges had criticized the Supreme Court's decision in D.C. v. Heller, likening the Court's discovery of an individual right to possess firearms for self-defense in the Second Amendment to the Court's discovery of a right to abortion in the Due Process Clause of the Fourteenth Amendment. Herewith, a few reactions:

1) This isn't all that surprising. These days Judge Posner is less of a conservative than a Holmesian pragmatist. He is strongly skeptical of the claim that formal legal materials---whether the Fourteenth Amendment or the Second Amendment---resolve concrete cases and, where appropriate, will unabashedly argue that judges should therefore make decisions based on what they consider the all-things-considered best outcome. Because one of the things considered in constitutional cases is the allocation of decision-making authority, this inclines Posner (like Holmes) to defer to legislatures in most matters, including abortion and gun control.

2) Ditto about the lack of surprise with respect to Judge Wilkinson. Were it not for the preposterously high bar set by the prolific Posner, Judge Wilkinson would be renowned for his own prodigious academic output. Having read his prior writings over the years, I would say that while he has been most critical of liberal rights-protective decisions (on, e.g., abortion, the death penalty, and gay rights), his main beef is with the judicial inference of rights that preclude democratic responses. That is why, in a 2002 article in the University of Colorado Law Review (not available for free online), he defended the Rehnquist Court's federalism jurisprudence as different from both Lochner-era conservative rights jurisprudence and Roe-era liberal rights jurisprudence. Wilkinson believes in a robust judicial role in the enforcement of the constitutional structure. He distinguishes structure from rights; he does not place much stock in the difference between enumerated but ambiguous rights (such as to "keep and bear arms") and unenumerated rights (such as the right to privacy).

3) So, apart from the man-bites-dog quality of these condemnations from the right, is there anything noteworthy here? That, to my mind, depends on the outcome of the Presidential election. If Obama wins, then the important cleavage on the Supreme Court will continue to be between moderates/liberals and conservatives. However, if McCain wins, we will likely see a solid conservative majority, at which point the key cleavage will be intra-conservative. A President McCain would not nominate Posner or Wilkinson to the Supreme Court because both are too old (though both are younger than McCain: Posner is 69 and Wilkinson is 64). However, to the extent that they represent a distinctive strand of conservative judicial thought, Justices in their mold might part company with the Roberts/Scalia/Thomas/Alito wing---although all would probably vote to cut back on or eliminate liberal landmarks like Roe.

Posted by Mike Dorf