In 2019, I published an article on Timbs v. Indiana with my itinerant co-author, Ilya Shapiro. We contended that Justice Ginsburg modified the Glucksberg test, as it was stated by Justice Alito in McDonald v. Chicago.
Justice Ginsburg wrote the majority opinion in Timbs, joined in full by Chief Justice Roberts and Justices Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh.144 This octet relied on the substantive due process framework employed in McDonald—sort of. Justice Ginsburg cited McDonald for the proposition that "[a] Bill of Rights protection is incorporated . . . if it is 'fundamental to our scheme of ordered liberty,' or 'deeply rooted in this Nation's history and tradition.'" That is, a right can be incorporated if it is either (a) "fundamental" or (b) "deeply rooted." Justice Ginsburg's summary is a plausible reading of McDonald, but not the best reading. Consider Justice Alito's test, in full:
With this framework in mind, we now turn directly to the question [of] whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, . . . we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, or as [the Court has] said in a related context, whether this right is "deeply rooted in this Nation's history and tradition."146
McDonald is better read to require both factors: that the right is (a) "fundamental" and (b) "deeply rooted." That is, asking if a right is "deeply rooted" is a way of determining whether that right is "fundamental." The inquiries overlap. Under the new Timbs test, however, a modern—or even postmodern—right could still be deemed fundamental. Indeed, this novel approach echoes the framework Justice Breyer advanced in his McDonald dissent: "I thus think it proper, above all where history provides no clear answer, to look to other factors in considering whether a right is sufficiently 'fundamental' to remove it from the political process in every State."147
Alas, because seven other Justices joined Justice Ginsburg in Timbs, the Court has now watered down the incorporation test.
In the Dobbs draft, Justice Alito seems to have reverted back to his understanding of the Glucksberg test in McDonald. Joseph Blass made the catch at Balkinization:
Compare Justice Ginsburg's statement of the test in Timbs with Justice Alito's citation to her statement (emphasis my own). Justice Ginsburg writes that a right is protected under the Constitution's Due Process Clause "if it is fundamental to our scheme of ordered liberty, or deeply rooted in this Nation's history and tradition" (internal quotations omitted). But Justice Alito now writes: "Justice Ginsburg's opinion for the Court in Timbs [concluded] that the Eighth Amendment's protection against excessive fines is 'fundamental to our scheme of ordered liberty' and 'deeply rooted in this Nation's history and tradition.'" See the difference? Justice Alito slices Justice Ginsburg's statement of the test in Timbs in half around the word "or," sandwiching her quoted statements of the branches around a new "and". The opinion states the test four separate times, each time using "and" to connect the two branches. But up until this draft opinion the test has been disjunctive: in McDonald, Justice Alito states the test much as Justice Ginsburg did in Timbs, using "or." And so does Chief Justice Rehnquist in Glucksberg, the case that originated the test by drawing together its branches from prior Due Process precedents.
Conjunction disjunction at the Supreme Court.
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