If Brett Kavanaugh is confirmed, the Constitution is going to change so fast your head will spin

Donald Trump's judges are poised to seize control of the Supreme Court's docket.

CREDIT: Chip Somodevilla/Getty Images
CREDIT: Chip Somodevilla/Getty Images

Late last week, a federal appeals court divided 8-7 on whether to blow up a widespread consensus on how to read the Second Amendment and turn some of the NRA’s wildest fantasies into reality in the process. Mance v. Holder is a stark reminder of the Trump administration’s success in filling the bench with judges who, just a couple years ago, would have occupied the more extreme reaches of the judiciary. It’s also a warning about how quickly the law is likely to change if Supreme Court nominee Brett Kavanaugh is confirmed.

Nihilist conservatives in the mold of Neil Gorsuch are about to capture an entire United States Court of Appeals, and that court will form a pipeline that will channel ambitious right-wing lawsuits to the Supreme Court.

Arms and the Mance

Mance attempts to create a controversy out of District of Columbia v. Heller, the Supreme Court’s 2008 decision which held, for the first time, that the Second Amendment protects an individual right to bear arms. Admittedly, Heller is not a model of clarity. It acknowledges that there are limits on the Second Amendment, but describes them in vague terms — permitting bans on “dangerous and unusual weapons,” for example, or allowing “laws imposing conditions and qualifications on the commercial sale of arms.”


Yet, despite Heller‘s vagueness, all ten federal appeals courts to consider the question have applied what Judge Stephen Higginson describes as a “two-step analytic framework” to determine whether or not a law violates the Second Amendment. Under this framework, “severe burdens on core Second Amendment rights” are subject to a test known as “strict scrutiny,” the most demanding test courts typically apply in constitutional cases. Meanwhile, “less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core,'” are more likely to survive judicial review.

Higginson was one of the eight judges of the United States Court of Appeals for the Fifth Circuit that, in Mance, decided that it did not make sense to blow up this two-step framework adopted by ten different federal judicial circuits. But Higginson’s view barely carried the day.

Seven judges joined a series of three different dissenting opinions claiming that judges should replace the two-step framework with a vague framework examining “text, history, and tradition.” Judge James Ho, a severely conservative judge appointed by Donald Trump, even suggested that many fairly ordinary gun regulations are “per se invalid” — a rule that, if embraced by the judiciary, would lead to gun regulations being scrutinized more harshly than laws that explicitly discriminate on the basis of race.

Notably, Judge Ho’s opinion relied entirely on other judges and justices’ dissenting opinions to support key prongs of its reasoning.

The fact that a bare majority warded off this effort send the Second Amendment on a rampage through America’s gun laws is largely an accident of timing. The Senate recently confirmed Trump nominee Andrew Oldham to fill one vacancy on the Fifth Circuit, and another seat on this court remains open. It’s only a matter of time until Trump appointees and their ideological allies enjoy a majority on this court.


Mance obviously matters a great deal for Americans who wish to avoid being killed by an angry man with a gun. But it also foreshadows a dynamic that is likely to drive the Supreme Court if Judge Kavanaugh is confirmed to replace retiring Justice Anthony Kennedy.

Welcome to extended chaos realm

The Fifth Circuit will soon become a hotbed of hard-charging, Gorsuchian nihilism — it will hand down the kind of decisions that will even make many conservative judges blush. And that will make it very hard for the Supreme Court to shy away from these cases.

The most important divide on the Supreme Court is not ideological, it is methodological.

Some members of the Court’s conservative bloc, such as Justice Clarence Thomas or Neil Gorsuch, would happily burn two hundred years of precedent to the ground in an orgy of jurisprudential arson. Others, like Chief Justice John Roberts, take a more incremental approach, even occasionally warning his fellow conservatives not to push so hard that they undermine the legitimacy of the Court.


One of the most powerful tools the Roberts faction can wield to keep the Gorsuch faction from pushing too far is the fact that, for the most part, the Supreme Court gets to decide which cases it will hear. The Court typically turns away cases that haven’t produced a disagreement among the lower courts, even if a majority of the Court’s members might have decided those cases differently if forced to take up the case.

Indeed, the Court’s right flank is quite upset that they’ve been unable to place any major Second Amendment cases on the Supreme Court’s argument calendar. Just days after a gunman murdered 17 people at Marjory Stoneman Douglas High School in Parkland, Florida, Justice Thomas handed down a dissenting opinion complaining that the Court did not take up a challenge to California’s 10-day waiting period for gun buyers.

But what if there were a rogue federal appeals court that, relying largely on dissents written by men like Thomas or Gorsuch, constantly disagrees with the views of other circuit courts? If that happens, the Roberts faction will no longer be able to justify turning away cases that advance a conservative crusade.

The primary purpose of the Supreme Court is to maintain uniformity among the various federal courts. The Court’s own rules provide that it is especially likely to take cases where “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.” If the Fifth Circuit decides to force cases onto the Supreme Court’s docket, Chief Justice Roberts is unlikely to resist them when these cases create a genuine split among the circuits.

Which is all a long way of saying that, if Kavanaugh is confirmed, the Thomas/Gorsuch faction is likely to find itself in the driver’s seat. Many of the tactics that a more moderate conservative may use to slow the law’s steady march to the right won’t work if Gorsuch’s allies control an entire court of appeals.