Legal realists will find much here to admire, but those who hope the law can be something more than applied pragmatism, not so much.
Many commentators have focused on the extraordinary number of appellate judges that President Trump has nominated and the Senate has confirmed. But their quality counts as well. Some appellate judges are far more influential than others on the course of the law. For instance, an article ten years ago showed that at the time, three appointees of President Ronald Reagan—Richard Posner, Frank Easterbrook, and J. Harvie Wilkinson—were the most cited by their fellow appellate judges. Not coincidentally, all were law professors from prestigious schools. And the gap in citations between the most cited judges and the least cited was immense. Powerful opinions by judges can also influence the justices on the Supreme Court. The justices are more likely to choose to hear a case with a well-reasoned dissent by a member of the appellate panel.
Like Reagan, Trump has appointed many judges who also promise to be very influential. A case in point is Stephanos Bibas, a former University of Pennsylvania law professor, on the Third Circuit. In New Jersey Rifle and Pistol Club v. New Jersey, a majority of a Third Circuit panel upheld a law by which New Jersey limited the size of ammunition magazines for guns even if these magazines were kept solely within the home. But Judge Bibas eviscerated the majority opinion. It was the judicial equivalent of a perfect game, a first round knockout, or a checkmate within ten moves.
The majority argued that the New Jersey law should be tested under a doctrine called intermediate scrutiny rather than the strict scrutiny that normally applies to core constitutional rights. But as Judge Bibas pointed out, the Supreme Court has made clear that keeping firearms within the home is at the core of the Second Amendment. He showed that the majority was evading this holding by arguing that the right was not core because not many people used a large magazine in self-defense at home and could use other kinds of firearms for self-defense.
That kind of logic would never pass muster with other constitutional rights. So long as the right is core, the level of scrutiny cannot depend on how many people on how many people exercise a particular variation of the right or whether they could find other ways to exercise it. Individual rights are the rights of individuals. That some other people are not exercising them cannot be a reason to take them away from a person who wants to exercise them. Rights also permit choice in exercise. That that they can be exercised in one way is not a reason for the government to deprive people of the choice to exercise them in another manner.
To the argument that the Second Amendment is different, because guns are dangerous, judge Bibas tartly replies:
The Fourth, Fifth, and Sixth Amendments often set dangerous criminals free. The First Amendment protects hate speech and advocating violence. The Supreme Court does not treat any other right differently when it creates a risk of harm.
Bibas rightly argues for treating rights equally. Allowing judges the discretion to favor some rights over others allows judges to rewrite the Constitution, inscribing some rights in bold and others in faded print.
Bibas’s view lost in the circuit court, but his incisive dissent makes it more likely that the Supreme Court will take up the case. It will not be the last opinion of the Trump appellate judges that will shake the judiciary from its dogmatic slumber.