Four authors of articles in the November Supreme Court issue of the Harvard Law Review offered an in-depth look at the Court’s 2007-8 term in a panel discussion on November 18.
HLS Professors Lani Guinier and Cass Sunstein ’78 were joined by Yale Law School Professors Akhil Amar and Reva Siegel on the panel, with HLS Professor Mark Tushnet moderating. (Watch a webcast.)
(View the November issue of the Harvard Law Review.)
Guinier focused on dissenting opinions—especially oral dissents delivered from the bench, including Ruth Bader Ginsburg’s recent dissents in two cases: Gonzales v. Carhart, the 2007 case about abortion; and Ledbetter v. Goodyear, a case from last term on gender equality in employment. “Dissenting justices are much freer to speak in a voice that ordinary people can understand,” Guinier said.
Amar, Siegel, and Sunstein discussed the landmark Second Amendment ruling in District of Columbia v. Heller, in which the Court upheld an individual’s right to posses a firearm and struck down a ban on handguns in Washington, D.C.
Sunstein observed that the majority opinion in Heller was extremely narrow and focused on the particulars, indicating that the future of Second Amendment jurisprudence is likely to be one of judicial minimalism. Nevertheless, he acknowledged, “there has been a sea change with respect to the right to bear arms comparable to civil rights, sex discrimination, and gay rights.”
Amar focused on the heavy emphasis on historical analysis offered by the Justices in Heller. He took issue with that approach, saying that the case should have instead been determined on 14th Amendment grounds. “The vast majority of liberty and equality cases in the modern era are 14th Amendment cases,” he noted.
Siegel said she marveled at the majority opinion’s “remarkable claim to stand inside law and outside of politics.” She said the Heller opinion could only be understood by looking at the impact of social movements on constitutional law throughout history. Right now, she explained, the American public largely embraces a Second Amendment right, illustrated by both Barack Obama’s and John McCain’s support of the Heller decision during the Presidential campaign.