William Brennan

The Supreme Court in United States v. Rahimi rejected the idea that the Second Amendment is 'trapped in amber,' a metaphor now widely used in constitutional law. The phrase originated in 1974 with Justice Thurgood Marshall's dissent in Richardson v. Ramirez but has since been adopted by conservative justices like Neil Gorsuch. The metaphor challenges the notion of fixed legal principles, reflecting a shift toward living constitutionalism.

The article examines Justice Brett Kavanaugh's role as a prominent concurrence writer on the Roberts Court, highlighting his frequent alignment with majorities (92-95% of decisions) and his use of concurrences to respect dissenting arguments, explain court opinions, and outline future legal views. Kavanaugh's approach is contrasted with historical justices like William Brennan and John Harlan, with a specific example from the Trump v. Barbara birthright citizenship case illustrating his balancing of statutory and constitutional interpretations.

The Supreme Court's visibility through books and public statements contrasts with its opaque practices. Major decisions often emerge at the term's end, possibly due to complexity or tradition, while 'relisted' cases are reconsidered repeatedly, tracked by Relist Watch. The court's customs, like Justice Brennan's ferry schedule influencing term dates, remain enigmatic.