The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
With Dobbs on the docket, the Supreme Court is under a full-Court press. Much of this pressure will come from the left. Though, I have long suspected that elements of the conservative legal movement will also urge the Court to pump its brake. An amicus brief from Judge Luttig was such an entreaty in NYS Rifle & Pistol. This brief was arguably useful because a conservative–who ostensibly supports gun rights–urges the Court to uphold the gun control law. Of course, if the author in fact support gun control as a policy matter, the utility of the brief is diminished. Based on my taxonomy, the brief would not be a Type IV brief, but would actually be a Type III brief: all the usual suspects made all the usual arguments.
Today, Donald Ayer published an op-ed in the New York Time, titled "The Supreme Court Has Gone Off the Rails." Ayer's bio line states that he "was a U.S. attorney and principal deputy solicitor general in the Reagan administration and deputy attorney general in the George H.W. Bush administration." The New York Times likely gave Ayer a publication slot because he is a conservative who is criticizing the conservative Court. The media finds useful conservatives who criticize conservatives. Ayer's two prior op-eds in the Times, co-authored with Norman Eisten, were critical of Trump. (I am still shocked the Times invited me to write an op-ed that was critical of the first impeachment).
In short, this op-ed was packaged as a Type IV submission: a conservative who unexpectedly favors upholding Roe. Indeed Ayer claims the mantle of the "Reagan Revolution"!
In the 1980s, along with three of the current justices (John Roberts, Samuel Alito and Clarence Thomas), I participated in the Reagan revolution in the law, which inspired and propelled the careers of three other current justices (Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett). The Reagan revolution pitted itself against "activist" judges who were seen as following personal whims by altering the law and creating rights not found in the Constitution. Through interpretive tools like textualism and originalism, the Reagan lawyers sought to make the law more predictable and steady — as articulated by John Roberts, the job of justices was "to call balls and strikes, and not to pitch or bat."
After reading this stirring introduction, I thought the crowning achievement of the "Reagan Revolution" would be capturing the white whale, and overruling Roe v. Wade. The Reagan and Bush 41 Administrations urged the Court to exactly that. That goal became even more elusive after two Reagan nominees–O'Connor and Kennedy–cast the deciding votes in Casey. But no, that is not the thrust of this op-ed. Indeed, Ayer pre-emptively faults the Court for "discarding longstanding precedents" like Roe.
That revolution, however, has morphed into what it was meant to curtail, as the expanding right-wing majority on the Supreme Court has relied on an array of innovative constitutional rights to undermine traditional governmental actions while discarding longstanding precedents with which they disagree.
In other words, the Court should not discard "longstanding precedent," even where that precedent recognizes "rights not found in the Constitution." He continues:
In the highest-profile case of the court's new term, Dobbs v. Jackson Women's Health, the conservative justices may be ready to repeal the constitutional right to abortion.
There is a tell here. Most judicial conservatives are careful not to say "the constitutional right to abortion." To say "the constitutional right to abortion" is to acknowledge that Roe was correct to recognize such a right. Most conservatives will hedge, and say something like the Court-recognized right to abortion, or the purported/putative right to abortion, or the right to abortion recognized in Roe. For example, consider this sentence in my article on Jacobson:
Yet in 2020, Jacobson became the fountainhead for pandemic jurisprudence. Courts relied on Jacobson to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts.
The word "rights" does not appear after abortion. Subtle, but deliberate.
Moreover, he writes "repeal the constitutional right to abortion," as if the Court is a legislature that repeals statutes. Overruling an incorrect precedent is not an act of repeal.
If Ayer disagreed with Roe, he could have said so. It would have made his Type IV op-ed far more compelling: "I disagree with Roe, but think the Court should uphold the precedent." The stronger inference is that Ayer agrees with Roe, or at least agrees with Casey. And if Ayer agrees with Roe and Casey, then the utility of his op-ed is diminished: a person who supports abortion rights favors abortion jurisprudence. For what it's worth, Ayer filed a brief in June Medical, urging the Court to follow stare decisis. That case predated the current composition and alleged transgressions of the Trumpified Roberts Court.
Ayer attempts to explain the mantle of the Reagan revolution:
But they would do well to remember why the Reagan revolution in the law came about in the first place. It was motivated by resistance to judicial meddling, primarily by the Warren court of the 1950s and '60s, and it rested on the idea that judges are stewards of an existing body of law and not innovators charged with radically remaking it.
The "existing body of law" that judges must maintain is the written Constitution, and not the precedents of the Warren Court. Stare decisis does not mean, stand by the precedents of the Warren and Burger Courts.
Ayer treats Heller in a very different fashion than he treats Roe: He writes:
At the same time [the Court] seems ready to cast aside certain constitutional rights, the court today regularly gives sweeping new interpretations to other rights and invokes them to radically narrow certain government powers that were until quite recently uncontroversial, including, for example, powers related to public safety or our democratic process.
It may be ready to do just that in an upcoming firearms case in which a lower court upheld, in a manner largely consistent with other recent decisions, a New York State law that requires evidence of good cause for a person to obtain a license to carry a gun outside of the home. In the 2008 Heller case, the Supreme Court acknowledged that the Second Amendment right to bear arms does not allow a person to "keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."
New York prevents New Yorkers from carrying weapons for any reason whatsoever. Ayer seems to agree with Luttig that Heller only protects a right to keep a gun in the home.
Ayer adds that a right to public carry would be a case of"sweeping new interpretations [of] rights." Again, his mode of judicial interpretation seems backwards. An unenumerated right to abortion is "longstanding" but an enumerated right to bear arms is "sweeping."
Ayer views affirmative action in a similar light:
Another potential blockbuster case — it is not yet officially on the docket — would consider a reversal of the court's precedent approving affirmative consideration of race as a factor in college admissions.
Ayer puts a lot of weight in the Bakke line of decisions–another precedent the Reagan Administration opposed!
Ayer criticizes Brnovich:
The court also intervened for the second time to severely undermine the Voting Rights Act when it voted 6-3 to greatly narrow Section 2.
But that decision was a crowning achievement for former Reagan administration wunderkind John Roberts!
Granted, I was four years old when President Reagan left office, but I struggle to see how Ayer can claim the mantle of the Reagan Revolution.