Shinn, Jimenez-Shilon, and the Hierarchy of Rights  

Earlier this week, in United States v. Jimenez-Shilon, the Eleventh Circuit rejected a Second Amendment challenge to the federal law barring undocumented immigrants from possessing firearms. Dru Stevenson will be guest posting about the case on this blog. But I want to highlight a few aspects of Judge Newsom’s majority and separate concurring opinions—and compare and contrast it with another decision released the same day.

The question in Jimenez-Shilon was whether the Second Amendment protects undocumented immigrants. The majority said no. I’ve got qualms with some of the majority’s reasoning, but—as the court says—its conclusion upholding the federal bar on firearm possession for undocumented immigrants is in line with the unanimous opinion of the federal courts of appeals. (Immigration expert Deep Gulasekaram has a good paper criticizing this line of precedent.)

What’s more noteworthy to me about the case is Judge Newsom’s concurrence calling for adoption of the test of text, history, and tradition to evaluate Second Amendment challenges (though he’d lop off tradition), instead of the two-part framework that has thus far been adopted (again unanimously) by the federal courts of appeals. In Judge Newsom’s view, the second part of the standard framework, which calls for application of means-end scrutiny, is “problematic—not only because it elevates the normative views of ‘we the judges’ over ‘We the People’ through an ill-defined balancing test, but also because it stands in significant tension with Supreme Court precedent.” Asking conventional means-end scrutiny questions, he says, is “an amorphous inquiry” that “risks unelected and unaccountable judges upholding or invalidating gun-control laws at will—without respect to the original public meaning of the Second Amendment.” Judge Newsom goes on to say that courts ought to rethink scrutiny analysis in all constitutional cases. “If we, as judges, conclude—as I’ve said we should—that Second Amendment rights shouldn’t be casually balanced away by reference to manipulable means-ends balancing tests, we might need to start asking the bigger question: On what basis can we do exactly that when dealing with other, equally fundamental rights?”

Compare that suggestion, which calls into question an enormous range of constitutional doctrine, with another case decided the same day: Justice Thomas’s majority for the Supreme Court in Shinn v. Martinez Ramirez. The two decisions share remarkable similarities and equally remarkable differences. Both decisions foreclose rights claims by members of marginalized groups (prisoners in Shinn and undocumented immigrants in Jimenez-Shilon), groups for whom the political process is often not an adequate alternative to courts. Both majority decisions are written by conservative judges who are wedded to ideals of original public meaning and who claim fidelity to the Constitution’s protection for individual rights against government overreach. Yet both are deeply deferential to the government’s exercise of its most awesome power over individual liberty—imprisonment in Jimenez-Shilon, and the imposition of a death sentence in Shinn. (Shinn is a habeas case, and as federal courts scholar Leah Litman observes, “habeas corpus is known as the ‘Great Writ’ because it protects individual liberty and checks government power”—though she also complicates that picture. But it is noteworthy that the Court’s most libertarian justices often have the most restrictive views of habeas).

The cases also have some fundamental differences. Judge Newsom’s separate concurrence in Jimenez-Shilon contains a rousing encomium to fundamental constitutional rights, and to the judiciary’s role in protecting those rights at all costs, because (on his view) the founders already conducted any interest balancing when they codified the right in the Constitution in the first place.  No government interest can be so compelling or important to overcome the right assertion. To put it mildly, that’s not the view Justice Thomas, writing for the Shinn majority, takes about the constitutional right at issue there.

Shinn is a habeas corpus challenge that presents as a complicated case about procedural default rules, statutory provisions governing post-conviction relief, cause, prejudice and imputed errors, and issues of federalism and comity. But, at its core, the case is about whether the Sixth Amendment’s guarantee of competent attorneys for those accused of crimes will be enforced by federal courts—and about the concomitant constitutional right to the Great Writ of habeas corpus protected in the Constitution’s Suspension Clause. As habeas expert Lee Kovarsky notes, because of the nature of that type of constitutional claim, “we basically rely on post-conviction proceedings to judicially enforce the Sixth Amendment right to counsel.” Shinn guts that—and in many ways does so based on the costs that it would take to enforce such a right.

In his opinion, Justice Thomas writes at length about the interests on the other side of the rights-ledger, such as the need “[t]o respect our system of dual sovereignty.” He says that federal habeas review “intrudes on state sovereignty” to an almost unparalleled degree, imposing two special “costs” that the he emphasizes for the 6-3 majority: (1) “a federal order to retry or release a state prisoner overrides the State’s sovereign power to enforce ‘societal norms through criminal law’”; and (2) it delays final resolution and “undermines the States’ investment in their criminal trials.” He further underscores the significance of the state interests at stake: “the powerful and legitimate interest in punishing the guilty, an interest shared by the State and the victims of crime alike”; the “exhaustion and procedural default” rules that “promote federal-state comity,” including how the latter “protects against ‘the significant harm to the States that results from the failure of federal courts to respect’ state procedural rules.” According to Justice Thomas, federal court “intervention is also an affront to the State and its citizens who returned a verdict of guilt after considering the evidence before them.”

It’s hard to imagine the same kind of rhetoric being used to support, say, a state’s “powerful and legitimate interest” in preserving public safety with gun regulation. If anything, Shinn makes it seems as if the Sixth Amendment is the true “Rodney Dangerfield of the Bill of Rights,” not—as Judge Willett would have us believe—gun rights, which are amply protected by the political process and exponentially expanding in state legislatures the country over. Experts commenting on Shinn have remarked how it means that now “you have a Sixth Amendment right to effective assistance of counsel that is good for a glass of water at Denny’s. Because there’s no meaningful site to enforce it, it’s not worth shit.” The Court’s decision, proclaimed another expert, will “be disastrous for anyone relying on their constitutional right to effective counsel.”

These differences between Jimenez-Shilon and Shinn are stark, coming as they do on the same day by jurists who are ideologically and (otherwise) methodologically aligned. In his opinion, Judge Newsom expressly advocates for ignoring the costs of vindicating constitutional rights. Justice Thomas, on the other hand, expressly catalogues, and underscores, the costs that vindicating a constitutional right can have as reason not to vindicate it. It’s hard to avoid the impression that some conservative judges just like the Second Amendment better than any constitutional right that inures to the benefit of certain criminal defendants.