Judge Laurence Silberman Dies—Do His Latter Years Make the Case for Judicial Reform?Breaking News
tags: gun control, originalism, Confederacy, judiciary
In 2020, Elizabeth Warren proposed an amendment to the National Defense Authorization Act seeking to rename a number of U.S. military installations. For over a century, military base names have functioned as the highest profile federally sanctioned Confederate monuments. Generally located in the South, segregationist politicians serving in the early to mid-20th century successfully branded these massive federal sites after Confederate generals — digging far enough in the barrel to name one after Braxton Bragg who was not only a traitorous cur but wasn’t even good at his job!
Judge Laurence Silberman of the D.C. Circuit sent an email blast to the entire court’s membership and staff laying out his “opposition to the madness proposed by Senator Warren: the desecration of Confederate graves” complete with some glib observations downplaying the role slavery played in the war. The proposal had nothing to do with graves, just removing names slapped on facilities by bigots decades after they lost the Civil War, though fringe media outlets floated the false talking point that Warren’s law would dig up Confederate graves. The D.C. Circuit leadership did nothing in response, but one of the circuit’s five Black clerks responded detailing the actual history of the war, even quoting a specific man whose name adorns a base explaining that it was a struggle to maintain white supremacy.
As the clerk pointed out, years earlier, Judge Silberman called upon the federal government to remove J. Edgar Hoover’s name from the FBI Building, noting that “this country – and the Federal Bureau of Investigation – would be well served if [Hoover’s] name were removed from the bureau’s building. It is as if the Defense Department were named for Aaron Burr. Liberals and conservatives should unite to support legislation to accomplish this repudiation of a very sad chapter in American history.” The judge understood the value of a nation refusing to honor its most disgraceful citizens at one point.
“At one point” is a bit of a theme.
The short Civil War history lesson also put Silberman’s most enduring judicial accomplishment in context. It’s Silberman’s work on the D.C. Circuit’s Heller opinion that found itself parroted in the Supreme Court opinion. As the Wall Street Journal put it in a sentence of pure unintentional hilarity, Silberman is credited with “laying out the historical case for it protecting the individual right to gun ownership, unconnected with service in a militia.” That amateur history is riddled with errors, but defines the modern originalist approach: armchair historians cherry-picking and hand-waving their way to the policy result they want.
Yet at one point, he had championed judicial restraint and criticized both liberal and conservative judges for overstepping their charge and reverse engineering opinions to get a result. It’s a level of circumspection at odds with the project of cobbling together a Frankenhistory of guns in order to strike down decades of established precedent.