BREAKING! Crucial Ex Post Facto Clause Case!
By The Supreme Court yet again declined to hand down any of the big civil rights cases that are still pending (I’ll put the over/under on Breyer‘s Fisher dissent at 500 pages.) Perhaps it’s saving the Voting Rights Act and affirmative action cases for one big “let’s destroy the Great Society” day, which will end with John Roberts solemnly urinating on a picture of Lyndon Johnson giving the “We Shall Overcome” speech. In the meantime, however, the Court did hand down a civil liberties decision that’s interesting in its own right.
One other interesting aspect of yesterday’s case is that it was the latest example of the running debate between Thomas and Scalia (now joined by Alito) about whether precedents should be re-evaluated in light of the “original understanding.” Thomas had a section in his dissent arguing that the test being used by the Court should be rejected; Alito and Scalia responded with a one-paragraph dissent noting that they “do not have occasion in this case to reconsider that test’s merits or its relation to the original understanding of the Clause.”
The most interesting example of this disagreement, as some of you will know, occurred during McDonald v. Chicago. Thomas wrote a lengthy concurrence arguing that the Bill of Rights should be incorporated through the privileges and immunities clause rather than the due process clause; Scalia briefly dismissed the argument in his concurrence and more extensively dismissed it oral argument. I’m of two minds about this dispute (leaving aside the merits of originalism itself, which I think are minimal.) My instinct is to side with Thomas — it’s not clear why we should continue to pretend that the evisceration of the p & i clause in the Slaughterhouse cases remains good law when almost everyone across the ideological spectrum holds it in contempt. But I also see Scalia’s point — at this late date the due process clause has been used to incorporate all of the fundamental rights that would have been incorporated through p & i, so it’s not clear what value their is in overruling more than a century of precedent to make a purely academic logical point. And as the fact that Scalia and Thomas generally agree on the bottom line indicates, these grand theoretical disputes tend to be of very limited practical import.