Thread by @JoshMBlackman

Thread on Timbs v. Indiana #SCOTUS
1/ In McDonald, J. Alito's analysis equated whether a right is "fundamental to our scheme of ordered liberty" with whether that right is "deeply rooted in this Nation's history and tradition." scholar.google.com/scholar_case?c…

2/ J. Alito used the word "or" between the phrases, but his analysis merged the two elements. I always thought McDonald required both conditions to be satisfied.

3/ In Timbs, RBG quotes McDonald, but does so in a way that decouples the two elements. That is, a right can be incorporated if either (a) it is "fundamental" or (b) it is deeply rooted.

4/ This subtle shift is important. In McDonald, the fact that a right was deeply rooted was evidence that it as fundamental. In Timbs, a right can be fundamental, independent of Wash v Glucksberg. I have to imagine this change was deliberate. And the conservatives went along

5/ This argument echoes Breyer's dissent in McDonald,. He wrote that "where history provides no clear answer," it is proper "to look to other factors in considering whether a right is sufficiently 'fundamental.'"

6/ In McDonald, J. Stevens's lone dissent favorably cited Apodaca v. Oregon. He also pestered Paul Clement about it during oral arguments. The plurality rejected that argument in McDonald, and rejected it again in Timbs.

7/ Despite hinting at McDonald's "contemporary" test for "fundamental rights," RBG considers whether the right against excessive fines is deeply rooted. She looks at both, when 8th Am was framed, and when the 14th Am was ratified. (Though she also uses modern survey)

8/ RBG concludes that this right is both "fundamental" and "deeply rooted." However, her opinion leaves open the possibility that only one element is required for incorporation.

9/ I am really struggling with J. Gorsuch's concurring opinion. First, he concurs with the majority opinion, but writes that he only agrees with the majority's "conclusion." Why did he not simply concur in judgment.

10/ Second, he writes that "nothing in this case turns on" the Q of what is the "precise vehicle" to incorporate provisions of Bill of Rights. This issue was fairly raised by Petitioner (represented by @IJ). "Turns on" does not equate to "not raised by." supremecourt.gov/DocketPDF/17/1…

11/ Third, J. Gorsuch favorably cites J. Thomas's opinion in McDonald, but he doesn't cite infra J. Thomas's opinion in Timbs. He could've written something like, "I agree with analysis J. Thomas, infra, but this case can be resolved on basis of longstanding precedent."

12/ I don't mean to dump on Gorsuch. At least he had the convictions to acknowledge the correct originalist approach to incorporation. His parenthetical even acknowledged that only "individual" rights (not Establishment Clause and 10th Amendments) are privileges or immunities.

13/ In contrast, silence from J. Kavanaugh. Incorporation is a prime example where originalists can be originalists, discard stare decisis, and reach a result that is non-controversial. Instead, Kavanaugh joins the other two members of McDonald plurality, Roberts and Alito

14/ Slight correction to thread item # 11: Gorsuch does cite pp. 1-3 Thomas's concurrence in Timbs concerning the P or I clause, but he does not cite Thomas's analysis of the Excessive Fines Clause.

https://twitter.com/JoshMBlackman/status/1098326984885760000

15/ Concur.

https://twitter.com/DeskThirteen/status/1098328543447126042

16/ J. Thomas's concurrence is exactly what I expected following McDonald. He adds a dig at Obergefell. (J. Gorsuch cites J. Thomas attacks on Obergefell, Casey, Roe, and Dred Scott.)

17/ In McDonald, both the plurality and the dissenting opinion referenced J. Thomas's separate writing on the Privileges or Immunities. scholar.google.com/scholar_case?c… In Timbs, the majority didn't acknowledge Thomas's analysis. Like two ships passing in the night.

18/ .@damonroot in @reason "If Brett Kavanaugh is a committed originalist, you would never know it based on his complacent behavior in Timbs v. Indiana." reason.com/blog/2019/02/2… #SCOTUS

19/ .@damonroot article in @reason on Timbs makes @DRUDGE
MAG: Justice Kavanaugh Flunks His First Test as an Originalist... reason.com/blog/2019/02/2… #SCOTUS