Jonathan Adler of the Volokh Conspiracy reports on a recent Q&A with Justice Sotomayor:
A student asked Justice Sotomayor whether she could explain the reasons why she joined the dissent in McDonald v. Chicago and whether she thought Justice Thomas’ concurring opinion relying upon the Privileges or Immunities Clause had any merit. “No,” she replied. She went on to explain. “Every opinion I write and every opinion I join” fully explains her reasons for deciding a case in a particular way. She also suggested some justices are too quick to write their own separate dissenting or concurring opinions.
Ye gad, does Sotomayor ever get off easy here. Here’s the question that everyone wants to know about Sotomayor’s dissent in McDonald:
Given that you testified under oath that the Heller decision was “settled law,” how could you then join a dissent arguing the Heller should be overruled?
For, as Dave Kopel has taken the lead in observing, Sotomayor did indeed tell the Senate Judiciary Committee that Heller, which recognizes an individual right to bear arms under the Second Amendment, is “settled law,” i.e., law that presumably should not be overturned. She went on to say, “I understand the individual right fully that the Supreme Court recognized in Heller.” Yet the dissent in McDonald, which holds that individuals have Second Amendment rights against state governments as well as against the Feds, argues that the Second Amendment, “does not . . . apply to individuals outside of the militia context.” In other words, Sotomayor does not see Heller as “settled law.” Either she lied under oath, used the term “settled law” in a very equivocal fashion, or had an uncanny (and implausible) change of heart after being confirmed.
Alas, the student questioner botched it. It’s hard to tell from Adler’s report, but it seems that the student asked essentially the right question (“Why did you join the McDonald dissent?”), but then meandered into the abstruse question of whether the Privileges or Immunities Clause of the Fourteenth Amendment protects any of the rights currently protected (or not protected) under the Due Process Clause.
Instead, the student should have pressed Sotomayor on her integrity. If the opinion she joined “fully explains” her reasons, how is that she testified against those very reasons just a few months prior?
The world may never know.