How Many Votes To Overrule The Slaughterhouse Cases?

As I mentioned yesterday, the petitioner’s brief in McDonald v. City of Chicago written by Alan Gura asks the Supreme Court to overrule The Slaughterhouse Cases and adopt a very different interpretation of the Fouteenth Amendment’s Privileges or Immunities Clause.  The obvious question is, how many Justices will agree?   My guess: only one.  In this post, I want to peer into my crystal ball and see how each of the Justices (or group of Justices) will react to Gura’s argument.

1) Justice Thomas. I suspect Justice Thomas is Gura’s only vote.  Justice Thomas more or less took Gura’s position in his dissent in Saenz v. Roe a decade ago. He’s likely on board today.

2) Justice Scalia. In contrast to Justice Thomas, Justice Scalia  probably won’t agree with the Gura brief in light of stare decisis.  In speeches about originalism and stare decisis, Scalia often uses the 14th Amendment incorporation doctrine as an example of a line of cases that he thinks was wrong but that he won’t overrule because of all the reliance interests built up around it over the years.  If Scalia won’t overturn the 50-year old incorporation doctrine even though he thinks it was wrong, I doubt he’ll want to overturn the 116-year old Slaughterhouse Cases even if the brief convinces him they were incorrect.  That’s particularly true because the Gura brief advocates a version of privileges or immunities that is so vague it would vest tremendous new discretion in judges  (more on that below).  I just don’t think Scalia is going to want to do that.

3) Chief Justice Roberts and Justice Alito.  Chief Justice Roberts and Justice Alito are also sympathetic to originalism, and may harbor the sense that Slaughterhouse and the incorporation cases were both wrong as an original matter.  But I don’t think they’re revolutionaries, and the brief calls for a revolution.

To see this, it helps to realize exactly what life the brief aims to breathe into the Privileges or Immunities clause.  At various points in the brief, the brief lists the following new rights that the Fourteenth Amendment should be read to protect beyond what it already protects under the Due Process and Equal Protection clauses:

a) “a broad array of pre-existent natural rights believed secured by all free governments.” (p.10)

b) “What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” (p.17) (quoting Corfield, 6 F. Cas. at 551.)

c) “The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state . . . [and] the elective franchise” (p.17) (quoting Corfield, 6 F. Cas. at 551.)

d) “Natural rights which are those rights common to all men, and to protect which, not to confer, all good governments are instituted.” (p.24) (quoting Bingham)

e) Rights that “are not and cannot be fully defined in their entire extent and precise nature.” (p.25) (quoting Howard)

f) “The right to contract” (p.25) (quoting Rogers).

g) “The natural, fundamental rights, believed to fall under Article IV, Section 2, and the rights codified in the first eight amendments.” (p.26)

Are Chief Justice Roberts and Justice Alito (and Justice Scalia, for that matter) going to want to give the federal judiciary a new power to strike down legislation because it is inconsistent with “natural rights,” including “the right to obtain happiness and safety,” with some of those natural rights undefinable “in their entire extent and precise nature”? I just can’t see that. From their perspective, the Ninth Circuit already makes up lots of stuff as it is. Do you really wanna give them this loosey-goosey undefinable natural rights stuff and let them run free with it? I don’t think so.

I think Roberts and Alito are particularly unlikely to agree with the Privileges or Immunities argument in light of basic judicial restraint principles. The Due Process argument here is pretty straightforward: Heller itself has enough language to make the case that the 2nd Amendment is incorporated under Due Process. It would be a huge break from any traditional concept of judicial minimalism to decide the case by overturning Slaughterhouse.

4) Justice Kennedy. Justice Kennedy is not an originalist, and he basically likes the Court’s existing Due Process jurisprudence. I think he’s a solid vote for incorporation via Due Process, but I don’t see him wanting to change the law in such a radical and far-reaching way under the P or I clause. It’s just not his style.

5) Justices Stevens, Ginsburg, Breyer, and Sotomayor. I suspect the Justices on the more liberal half will read the Gura brief and conclude it’s just trying to resurrect Lochner. The Gura brief envisions a Privileges or Immunities Clause that would include “the right to contract,” the right “to take, hold and dispose of property, either real or personal,” and the right to “an exemption from higher taxes or impositions than are paid by the other citizens of the state.” That sounds like Lochner, which to them is the very epitome of a wrong turn in constitutional law. Plus, they presumably realize that overturning Slaughterhouse is a major goal of libertarian legal activists like the folks at the Institute for Justice who want to resurrect P or I as a way to attack the modern regulatory state. I don’t expect them to help.