Based on a quick read of the oral argument transcript, a few things stood out:
1. The Privileges or Immunities arguments never really got off the ground. None of the Justices seemed in favor of that approach, at least based on the questions. (Justice Thomas, as is his custom, asked no questions.) Only about 10-12 minutes of the questioning even concerned the P or I route, and the questioning seemed mostly focused on trying to understand the nature of the claim. For my VC co-bloggers and many VC commenters who hoped today would signal the beginning of the libertarian constitutional revolution, there doesn’t seem to be much room for optimism.
2. Justice Stevens, often the liberal Justices’ primary strategist, seemed to have a plan to join on the theory of incorporation by Due Process but then to water it down as applied to the states. This revisits an old debate on the incorporation doctrine about whether incorporation applies the Bill of Rights to the states “jot for jot” or only applies the core protections of the right to the states. Given Stevens’ questioning, my guess is that the liberal Justices may try to band together and offer Kennedy a less protective version to apply to the states. I read Justice Kennedy’s questions at the bottom of page 13 and on pages 53-54 to suggest he is pretty skeptical of that approach.
3. I thought Justice Ginsburg had an interesting point in her questioning at page 9, when she suggested that an originalist approach to Privileges or Immunities would have the Court adopt a right that was pretty antiquated — specifically, it would give men a lot of rights, but deny those rights to women. Gura’s response suggested, as best I can tell, that the Court should be originalist in its identification of the right but be modern in its interpretation of them. Thus, for example, the Court should say that there is a right to contract based on the original understanding, but should reject the original understanding of this right to contract in favor of a more enlightened standard (such as one that does not discriminate by gender). To my mind, that’s one of the oddities of Gura’s originalist argument: It is 100% originalist but only 50% of the time. That is, it is originalist with some aspects of the Fourteenth Amendment, but then argues that the Court should not be originalist with other aspects, such as the preexisting Due Process cases on the books. I understand the appeal of this approach from a libertarian perspective: libertarian rulings get stare decisis protection while non-libertarian precedents don’t. But unless you believe, as does my co-blogger Randy, that the Constitution if properly construed mandates libertarianism o’er the land, it seems like a pretty result-oriented approach.