Legal Commentary

McDonald, Constitutional Theory, and the Confirmation Process

By Orin Kerr

A lot of VC readers who have followed McDonald v. City of Chicago were quite disappointed last week by what they saw as the Supreme Court?s likely unwillingness to revisit the Privileges or Immunities Clause. At oral argument, the Justices seemed focused on the practical problems of reviving PorI, not on whether such a revival was correct. None of the Justices who spoke seemed particularly interested in how a normatively proper constitutional theory applied to the case. A lot of readers were thinking, ?What?s the point of the Supreme Court if they?re not committed to getting it right as a matter of first principles??

These certainly are fair criticisms. But it seems to me that if you really want to change things, you should direct at least part of your criticism to the Constitution itself ? specifically, Article II, Section II. This section explains how people get on the Supreme Court: the President nominates, the Senate confirms, and the President then appoints. In other words, Supreme Court Justices must be nominated, confirmed, and appointed by politicians.

When politicians are responsible for determining who gets a significant power, they are not likely to favor someone who they think will exercise the power of the office in unexpected ways. They generally won?t want someone who will follow a theory to radical implications. Indeed, they probably won?t want ?theorists? at all. They?ll want people who exercise the power of the office with a sense of consequences, of cause and effect, and of the realities of institutional power. That is, practical people. And that means that the Justices we?re likely to get are likely to have that sense, and are unlikely to be the kind of purists who will follow theories even if it leads to radical implications.

I?m not saying this is a good or a bad thing. Opinions differ, and it?s beyond the scope of this post. My point is only that it?s the system the Constitution gave us. The Framers bestowed responsibility upon politicians for nominating and confirming Justices, and that choice means that the Justices we?re likely to get are likely to be more practical people than constitutional theorists. So if you?re disappointed that the Justices are not committed enough to constitutional first principles, it is of course fair to criticize the individual Justices, and the broader legal culture. But I think at least part of your criticism should be directed to the Framers for giving responsibility to politicians for who ends up a Justice.

Full post as published by The Volokh Conspiracy on March 08, 2010 (boomark / email).