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The Coming Influence of the Trump Judges

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.

Reader Discussion

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on December 14, 2018 at 06:38:33 am

Interesting piece. Interesting, too, that the debate over the enumeration of the Bill of Rights seems to continue over two hundred years later.

Perhaps the Framers should have called it the "Family of Rights", and the Amendments, "The Children of Rights"; in this manner, it would be much more difficult to favor one over the other, or to disown one and leave its share of the inheritence to the others.

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Image of Paul Binotto
Paul Binotto
on December 14, 2018 at 15:17:01 pm

It seems to me that the "selectivity" associated with the application of the various levels of scrutiny by the Black Robes is nothing more than a means to mask their predilection for policy making.

I preferred Tricky Dick's nomenclature:

"Modified limited hangout" - in any event a means and mode of obscuring one's intentions.

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Image of gabe
gabe
on December 15, 2018 at 22:06:25 pm

In Lawrence v. Texas, the court said that it isn't how many people want to have anal sex, but how important is it to the people who want to do it. The same logic could be used to prevent censorship, disarmament, and drug prohibition.

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Image of Frederickson Douglas
Frederickson Douglas
on December 16, 2018 at 13:51:27 pm

[…] Read more: lawliberty.org […]

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Image of The Coming Influence of the Trump Judges - Trump Gawker
The Coming Influence of the Trump Judges - Trump Gawker
on January 03, 2019 at 06:17:00 am

[…] John O. McGinnis, a well-known conservative professor at Northwestern University Law School, writing on the Law and Liberty website, called Judge Bibas’s dissent “the judicial equivalent of a perfect game, a first-round […]

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Image of A Call to Arms at the Supreme Court – USA News Hub
A Call to Arms at the Supreme Court – USA News Hub
on January 03, 2019 at 06:34:53 am

[…] John O. McGinnis, a well-known conservative professor at Northwestern University Law School, writing on the Law and Liberty website, called Judge Bibas’s dissent “the judicial equivalent of a perfect game, a first-round […]

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Image of A Call to Arms at the Supreme Court — Zenit-ka.ru
A Call to Arms at the Supreme Court — Zenit-ka.ru
on January 03, 2019 at 10:25:20 am

[…] John O. McGinnis, a well-known conservative professor at Northwestern University Law School, writing on the Law and Liberty website, called Judge Bibas’s dissent “the judicial equivalent of a perfect game, a first-round […]

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Image of A Call to Arms at the Supreme Court - Dresstle News
A Call to Arms at the Supreme Court - Dresstle News
on January 08, 2019 at 18:30:22 pm

[…] John O. McGinnis, a well-known conservative professor at Northwestern University Law School, writing on the Law and Liberty website, called Judge Bibas’s dissent “the judicial equivalent of a perfect game, a first-round […]

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Image of Ammoland Quoted in the New York Times, on Second Amendment
Ammoland Quoted in the New York Times, on Second Amendment
on January 08, 2019 at 19:01:28 pm

[…] John O. McGinnis, a well-known conservative professor at Northwestern University Law School, writing on the Law and Liberty website, called Judge Bibas’s dissent “the judicial equivalent of a perfect game, a first-round […]

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Image of Ammoland Quoted in the New York Times, on Second Amendment – Minnesota Gun Rights
Ammoland Quoted in the New York Times, on Second Amendment – Minnesota Gun Rights
on January 08, 2019 at 20:46:59 pm

[…] John O. McGinnis, a well-known conservative professor at Northwestern University Law School, writing on the Law and Liberty website, called Judge Bibas’s dissent “the judicial equivalent of a perfect game, a first-round […]

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Image of AmmoLand News Quoted in the New York Times, on Second Amendment | Patriots With Guns
AmmoLand News Quoted in the New York Times, on Second Amendment | Patriots With Guns
on January 08, 2019 at 23:45:17 pm

[…] John O. McGinnis, a well-known conservative professor at Northwestern University Law School, writing on the Law and Liberty website, called Judge Bibas’s dissent “the judicial equivalent of a perfect game, a first-round […]

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Image of AmmoLand News Quoted in the New York Times, on Second Amendment – Concealed Patriot
AmmoLand News Quoted in the New York Times, on Second Amendment – Concealed Patriot
on January 09, 2019 at 12:54:36 pm

[…] John O. McGinnis, a well-known conservative professor at Northwestern University Law School, writing on the Law and Liberty website, called Judge Bibas’s dissent “the judicial equivalent of a perfect game, a first-round […]

read full comment
Image of AmmoLand News Quoted in the New York Times, on Second Amendment – Minnesota Gun Rights
AmmoLand News Quoted in the New York Times, on Second Amendment – Minnesota Gun Rights

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.