The Practical Lesson From the McDonald Paradox

Believe it or not, there's a practical lesson to be learned from the paradox in McDonald v. Chicago I've been boring you with discussing here recently.  Not only is this a neat puzzle for academics to contemplate, but it's also an important tool for appellate lawyers to keep in mind when considering how best to win their case.

Appellate litigators can learn an important lesson from McDonald: raising a second issue can be the key to winning your case, even if that second issue on its own would not win the case.  After all, without the Privileges or Immunities Clause issue and presuming the Justices kept their positions the same on the Due Process Clause issue, Chicago would have won and the right to bear arms would not be incorporated.  However, with the second issue in the case, McDonald won instead and there is a new federal right applicable to every government in the country.

Before McDonald, it was basic blackletter constitutional law that the incorporated rights from the Bill of Rights were incorporated through the Due Process Clause.   Although some scholars and jurists supported incorporating the Bill of Rights through the Privileges or Immunities Clause, the Supreme Court had squarely rejected that approach and had limited that clause to have a very narrow effect.   Nonetheless, the lawyers challenging Chicago’s handgun ban included the Privileges or Immunities Clause argument in their briefing, making it their primary argument before the Supreme Court.   The decision was questioned by some, as the lawyers virtually ignored the Due Process Clause argument that was grounded in the currently-existing law about incorporation and instead focused on an argument that no one could possibly imagine getting a majority of the Court.

However, as the voting paradox shows, getting a majority of the Court to agree with the Privileges or Immunities Clause argument was irrelevant.  By raising that argument and getting only Justice Thomas to agree with it, the lawyers for McDonald won their case even though every other Justice rejected that argument.  Without the Privileges or Immunities Clause argument, only the four Justices in Justice Alito’s plurality would have voted in favor of incorporation.  However, with Justice Thomas agreeing with the Privileges or Immunities Clause argument (even though he did not agree with the Due Process argument), the lawyers had their fifth vote in favor of incorporation and were thus able to win their case.

An illustrative counter-example that proves the importance of raising a second issue is Gonzales v. Carhart.   Carhart was the Supreme Court’s second take on legislative prohibitions of “partial birth abortion.”   In 2000, the Court struck down Nebraska’s law, finding that it violated substantive due process guarantees.   On the basis of that decision, lawyers for abortion doctors challenged the 2003 federal law prohibiting essentially the same procedure.   In a 5-4 decision, the Court upheld the federal law, finding that it did not violate the Due Process Clause.   The case presented only one issue -- whether the law violated the Due Process Clause -- and the Court issued a straightforward non-paradoxical opinion.

Without changing the Justices’ opinions on the due process issue, the lawyers for the doctors could have won their case and convinced the Court to strike down the federal law by introducing a second argument -- that the federal law went beyond Congress’ enumerated powers under the Commerce Clause.  Although the Court has only struck down two laws since 1937 as going beyond Congress’ powers under this clause and there was no real argument that the federal abortion law was like those two laws,  at least one Justice probably would have found that the federal law was not authorized by the Commerce Clause.  Justice Thomas has written extensively about limits on Congress’ powers under the Commerce Clause, going so far as writing that “wholly intra state, point-of-sale transactions” are not within Congress’ authority  and that “health laws of every description” are beyond Congress’ authority as well.   If he had remained faithful to these previous pronouncements, he would have voted to strike down the federal law under the Commerce Clause even though he believed it was constitutional under the Due Process Clause.   That he wrote a concurrence in Carhart specifically explaining that he was not reaching the Commerce Clause issue because it was not raised by the parties drives this point home.

Thus, if this second issue had been raised, it could have turned a win for the federal government into a win for the doctors challenging the law.  The mechanism for doing so would have been the voting paradox:

Opinion author and number of Justices joining	Is the federal law unconstitutional under the Due Process Clause?	Is the federal law beyond Congress’ Commerce Clause power?	Is the federal law constitutional?
Kennedy (3)	No (3)	No (3)	No (3)
Thomas (2)	No (2)	Yes (2)	Yes (2)
Ginsburg (4)	Yes (4)	No (4)	Yes (4)
Total	No (5-4)	No (7-2)	Yes (6-3)

 Without the second issue, the second column shows the alignment the Court ultimately reached -- a 5-4 majority that the law was not unconstitutional.  However, with the second issue, even though the second issue would have been rejected by a majority of the Justices, the outcome would probably have flipped, as the fourth column shows.  With the second issue, the law is unconstitutional even though a majority of the Court believes it does not violate the Due Process Clause and a majority believes it does not go beyond the Commerce Clause.

Understanding the power of the voting paradox gives lawyers this route to winning their case.  Amazingly, they can win their case without convincing a majority of Justices of any of their positions.  Including a second issue that could get just one Justice to agree could be the difference between winning and losing.

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