The Anti-Carolene Court and Gun Politics

  • Date:
  • November 22nd, 2019

By: Darrell Miller

Nicholas Stephanopoulos has recently posted an article describing how the Roberts Court is fast becoming the “Anti-Carolene Court.”   The 1938 case United States v. Carolene Products Co. is famous, of course, for its footnote four, where Justice Stone articulates a theory of judicial review keyed to the need for judicial officers to intervene when there’s a failure of the political process.  The justices must act when groups – typically “discrete and insular” minorities  –  are  otherwise unable to assemble democratic coalitions to advance their political goals.  They must also act where there’s a risk of partisan hijacking of the political process itself to effect partisan entrenchment.  According to Stephanopoulos, the Roberts Court in recent years has “[f]lipped Carolene Products on its head” intervening in political disputes when Carolene Products would counsel deference, deferring when it would demand action, and all in a way that, consciously or unconsciously, aligns with the partisan priorities of conservative elites.

In Rucho v. Common Cause, for example, Chief Justice Roberts described partisan gerrymandering as a threat to democracy, but stated that there were no judicial tools to manage the issue – the solution must come from politics.  But, as Stephanopoulos notes, the Chief also appears skeptical of the very political solutions that might mitigate that threat, such as independent redistricting commissions.  In other words, the political response to the classic political process failure is viewed with constitutional scorn.   The result is that those trying to solve a complex matter of public policy are stymied in every direction, leaving an unsustainable and toxic status-quo.

Stephanopoulos, as a voting rights scholar, is most concerned with how judicial action (or inaction) aids partisan entrenchment rather than prevents it.  But his observations are also applicable to New York State Rifle & Pistol Association, Inc.  v. New York City.   Everyone seems to agree that gun violence is a serious problem – even Justice Scalia recognized as much in his majority opinion in District of Columbia v. Heller.  But he went on to note that the Second Amendment takes “certain policy choices off the table.”   Political process theory, though, would say that how much the Second Amendment knocks off the table is a function of both the risks presented by gun violence and the risks of a policy over-reaction.

Gun rights advocates have gone to extraordinary lengths since Heller to depict themselves as targets of over-reaction, victims of a political process failure, and minorities in need of vigorous judicial protection.   Their self-description is a powerful organizational and rhetorical tool, but is difficult to square with political reality.   There has been an utter lack of political movement on even the most modest (and most popular) gun violence prevention legislation, like universal background checks.  Even back-to-back mass shootings in Texas and Ohio, and the most recent shooting in a California high school, have seemingly no effect on the political deadlock.  It seems extremely difficult to see how the political process is failing to prevent a policy over-reaction.

On the other hand, the risks associated with gun violence remain – if anything – under-addressed by the political branches, as the remarkable amicus brief by the students of March for Our Lives articulates in graphic detail.  As they note, millions of young people live in an America of lockdowns, mass murder, and fear.  A broad and ill-considered ruling by the Supreme Court in NYSRPA would have the effect of cutting off their ability to fashion political solutions to a problem they experience most keenly.  The political deck may be stacked against them (given asymmetric intensity, partisan gerrymandering, and political minority protection in both state legislatures and Congress); but that is not the sole issue, so long as they remain free to translate their activism into politics.

As Judge Wilkinson cautioned recently:  “To say in the wake of so many mass shootings in so many localities across this country that the people themselves are now to be rendered newly powerless, that all they can do is stand by and watch as federal courts design their destiny – this would deliver a body blow to democracy as we have known it since the very founding of this nation.”   It’s one thing to lose a policy debate on a matter as complex and personal as gun violence; it’s another to be told you can’t have the debate at all.