A Note on Heller and Party Politics

Slate's blog on legal issues.
June 27 2008 6:31 PM

A Note on Heller and Party Politics

David raises the interesting question of whether conservative justices "mak[e] decisions in ways that create political debates sure to help Republicans." (And whether liberal justices similarly decide cases in ways that are likely to mobilize Democrats.) If so, then the five-person conservative majority missed a chance in Heller : Deciding for D.C. would probably have motivated the conservative base, while deciding for Heller probably fails to mobilize them very much. David doubts that such considerations actually motivate the justices. Similarly, David asks whether the smart move by Republican-appointed justices really is to hollow out Roe and Casey instead of overturning them.

Let me repeat what I have said before. We should not confuse the motivations of presidents and party leaders in nominating certain justices with the motivations of the justices themselves.

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Jack M. Balkin is Knight professor of constitutional law and the First Amendment at Yale Law School.

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