The Volokh Conspiracy
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Bruen and CASA: Analogical Originalism
Yet, neither the majority nor the dissent cited Bruen
I've finally finished Trump v. CASA. And I have lots of thoughts. But for starters, I wanted to focus on an obvious missing link between CASA and Bruen.
In Grupo Mexicano, Justice Scalia used reasoning by analogy to determine whether a particular remedy is within the scope of the equitable jurisdiction of federal courts:
We must therefore ask whether universal injunctions are sufficiently "analogous" to the relief issued "'by the HighCourt of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act.'" Grupo Mexicano, 527 U. S., at 318–319 (quoting A. Dobie, Handbook of Federal Jurisdiction and Procedure 660 (1928)).
The answer is no: Neither the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding. . . .
Under Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308 (1999), the lack of a historical analogue is dispositive.
Sound familiar? In Bruen, Justice Thomas followed a similar originalist framework to determine if a particular gun-control law aws within the scope of the government's regulatory power:
Much like we use history to determine which modern "arms" are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are "relevantly similar."
One would think that Bruen would at least get a See also citation here. But nothing.
There's more. In CASA, Justice Sotomayor's dissent accused the majority of freezing equity in "amber":
Most critically, the majority fundamentally misunderstands the nature of equity by freezing in amber the preciseremedies available at the time of the Judiciary Act.
Justice Barrett responds:
A modern device need not have an exact historical match, but under Grupo Mexicano, it must have a founding-era antecedent. And neither the universal injunction nor a sufficiently comparable predecessor was available from a court of equity at the time of our country's inception
Sound familiar? Chief Justice Roberts in Rahimi wrote that the Second Amendment is not trapped in amber.
Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber.
And Sotomayor quoted the Chief in her Rahimi concurrence:
Thankfully, the Court rejects that rigid approach to the historical inquiry. As the Court puts it today, Bruen was "not meant to suggest a law trapped in amber."
As did Justice Jackson:
The Court today expounds on the history-and-tradition inquiry that Bruen requires. . . . Ante, at 7–8. We emphasize that the Second Amendment is "not … a law trapped in amber."
Justice Barrett also embraced the line:
To be consistent with historical limits, a challenged regulation need not be an updated model of a historical counterpart. Besides, imposing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us "a law trapped in amber."
Justice Gorsuch's concurrence seemed content to be bound by amber, but doesn't think there is amber here:
We have no authority to question that judgment. As judges charged with respecting the people's directions in the Constitution—directions that are "trapped in amber," see ante, at 7—our only lawful role is to apply them in the cases that come before us. Developments in the world may change, facts on the ground may evolve, and new laws may invite new challenges, but the Constitution the people adopted remains our enduring guide.
How is it possible that the CASA majority and dissent talked about law being trapped in amber, but there was no mention of this line from Rahimi.
There's still more. Justice Sotomayor's dissent cites several injunctions from the twentieth century that she claims were universal. Justice Barrett's majority opinion discounts the relevance of these modern injunctions:
Regardless, under any account, universal injunctions postdated the founding by more than a century—and under Grupo Mexicano, equitable authority exercised under the Judiciary Act must derive from founding-era practice. 527 U. S., at 319.
To be clear, Barrett is not discussing the original meaning of Article III. The Court quite consciously did not address that issue. Rather, Barrett is trying to determine the original meaning of equitable jurisdiction under the Judiciary Act of 1789. And the framework there is more-or-less the same. Indeed, I think debates by the First Congress help inform the original meaning of Article III.
Where have we heard Justice Barrett writing that we should not consider post-enactment history? Her Bruen and Rahimi concurrences. She criticized the majority for considering gun control laws from after the framing. But there is again no mention of Bruen.
I should note that Jack Goldsmith writes that Barrett erred on her "temporal focus." The relevant timeframe, Jack writes, is 1875 when the precursor to Section 1331 was enacted. Sam Bray responds that 1787 is the correct time frame. I'm not sure who is right here, but I agree with Jack and Sam that this distinction likely is without a difference as universal injunctions were creatures of the twentieth century
In any event, it's like the Court pretends that entire Bruen/Rahimi (Brahimi?) episode never happened.
