The Volokh Conspiracy

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What Would Have Happened In Heller If Bush Had Nominated Luttig and Wilkinson Instead of Roberts and Alito

Justice Scalia would have written one helluva dissent.


In 2005 and 2006, two vacancies arose on the Supreme Court. President Bush initially picked John Roberts for the O'Connor seat, but then elevated Roberts to the Chief seat after Chief Justice Rehnquist died. (I sometimes dream what would have happened if Rehnquist hung on a few more months, and we got Chief Justice Alito). Bush tapped Harriet Miers for the O'Connor seat. After an outrage, Bush picked old-faithful Sam Alito for that position. Still, we know from The Nine and Supreme Conflict that Bush considered two other Fourth Circuit judges: Judges Luttig and Wilkinson.

It is hard to imagine how the Supreme Court would have proceeded if these two judges were picked instead of Roberts and Alito. It is even tougher to imagine the different leadership styles of Wilkinson and Luttig. Would either of them have played well with Kennedy? It's also difficult to presume stasis. Things change and people change. Indeed, I tend to think that the Chief seat liquifies the backbone of the steeliest occupant. It happened to Rehnquist. It happened to Roberts. I hope it happens to Kagan one day.

Still, it is fun to imagine some counterfactuals. And one particular counterfactual is plausible. D.C. v. Heller (2008) was one of the most significant decisions of the early Roberts Court. At that time, Chief Justice Roberts and Justice Alito had only been on the Court for two full terms. But their votes were essential to the 5-4 majority.

By the time Roberts and Alito arrived at the Supreme Court, Heller was already trickling up the pipeline. (Remember, Alan Gura, Clark Neily, and Bob Levy filed the suit with O'Connor was still on the bench). What would have happened with Wilkinson and Luttig on the Court? We have some grounds for speculation.

First, in 2008 Judge Wilkinson attacked Heller in the Virginia Law Review. He wrote, "The Roe and Heller courts are guilty of the same sins." It is impossible to know whether a Justice Wilkinson would have viewed the case differently. But I am skeptical. I think he would have cast the fifth vote to uphold the D.C. law. There would have been an obsequious defense of judicial restraint.

Second, let's consider Judge Luttig. After he lost his chance at the Supreme Court, he stepped down to become General Counsel at Boeing. From time to time, Luttig would publish an op-ed. Eventually, he got on Twitter and opined on several Trump-related controversies. Luttig had the cachet of a Republican federal judge, so people paid attention to him. But to my knowledge, Luttig never weighed in on the Second Amendment. Until now. Today, he filed an amicus brief supporting New York in NYS Rifle. He was joined by Peter Keisler, Carter Phillips, Stuart Gerson, and host of other people former Republican officeholders.

The brief urges the Court to uphold New York's gun control law:

Amici have an interest in preserving our historical, traditional, and constitutional system of governance regarding the Second Amendment's right to bear arms in public. As history and tradition demonstrate beyond peradventure, legislatures have, since long before the founding and continuously thereafter up to the present day, decided how to strike the delicate balance between the Second Amendment's twin concerns for self-defense and public safety in assessing the permissible restrictions on the public carry of loaded guns.

The brief repeatedly cite Justice Kavanaugh's Heller II dissent. If they could put Brett's face on the cover they would have.

It is possible that Judge Luttig would have supported Heller in 2008, but drew the line at the right to keep and bear arms in the home. In other words, the right exists in the house, and nowhere else. I don't know any Second Amendment supporters who draw that line, but they could exist. If Luttig's views on the Second Amendment mirrored those of Judge Wilkinson, then Heller would have come out very differently. And for all we know, Justice Kennedy may have gone along with it. Justices Scalia and Thomas may have been the only dissenters.

For the past 15 years, many conservatives have regreted that Bush picked Roberts over Luttig. At least with respect to the Second Amendment, Luttig may very well have been worse. Ditto for Wilkinson.