Judicial Activism, Historical Revisionism, and the Legacy of the Roberts Court

Saul Cornell is a professor of history at Fordham University, and signed an amicus brief in favor of the respondent city in McDonald v. Chicago.

For those fortunate enough to be at the Supreme Court today the announcement of the Court’s decision in McDonald v. City of Chicago was a riveting experience.  Visitors were treated to a theatrical experience that few will forget, a dramatic reminder of how deeply divided the Court is on the issue of guns.   Justice Breyer’s dissent skewered the majority for its bad history, judicial arrogance, and contempt for the political process.   Rather than accept Heller‘s novel theory of the Second Amendment, Breyer reminded the  Heller majority that the opinion has been lambasted by scholars and judicial commentators from across the ideological spectrum.

Rather than command intellectual respect the majority opinion provoked derision.  Sadly, Justice Breyer’s contempt was well earned.  The quality of scholarship cited by Alito,  much of it published in minor law reviews and much of it produced by gun rights activists with the express purpose of influencing  the Court is nothing short of intellectually embarrassing.  With over a thousand law reviews in existence, and many law reviews going on-line as well, the entire nature of legal scholarship now appears totally debased.  Law review publication, most of it lacking any meaningful  peer review or comparable quality control, has proliferated to the point where activists simply seed the law reviews with the express purpose of bolstering specious arguments. The notion  that courts ought to wait for a true consensus to appear before turning to law reviews has been replaced by a notion that all publications are created equal.  The notion of scholarly authority has almost no meaning any more.

The decision in McDonald is likely to keep law professors and court commentators busy and destined to be a virtual full employment act for gun rights lawyers.  Still, while  McDonald will likely not do much for Justice Alito’s reputation, or his place in history,  the decision’s reach is actually quite modest.  As a practical matter, the case merely extends the Heller status quo to the states and seems unlikely to change the realities of gun regulation.  While gun bans may be out, virtually any gun regulation that could survive the political process is likely to survive the wave of challenges that will follow in the wake of this decision.  Interestingly, Justice  Alito underscored the narrow scope of Heller‘s original holding – which, he made clear, only protected guns in the home.  Since most gun rights advocates are focused on the right to carry, his statement in McDonald is likely to be a serious disappointment.

Rather than try to find some sort of post-Heller common ground, McDonald simply underscores how deeply divided the court is over constitutional questions.  If there was any theme that tied together the two dissents Justice Breyer read from the bench today it would be that judicial activism, once the province of  progressives, is now an equal opportunity employer, and now appears to have become a defining feature of the Roberts  Court’s unfolding legacy.