At SCOTUSblog, Haley Proctor: What is “trapped in amber”? An originalist explanation. From the introduction:
Anyone watching the Supreme Court this past term may have remarked on the frequency with which the justices talk about fossilized tree resin. Consider:
The court in Trump v. Cook: “We see no reason, however, why our central bank ought to be ‘trapped in amber’ any more than any other aspect of our constitutional scheme.”
The court in Watson v. Republican National Committee: “Statutes do not ‘tra[p] in amber’ every contemporary practice on the same subject matter.”
Justice Sonia Sotomayor in Cisco Systems v. Doe I: “There also is no indication that Congress intended to ‘tra[p]’ the [Alien Tort Statute] ‘in amber.’”
Justice Ketanji Brown Jackson in Wolford v. Lopez: “Such a narrow search results in a ‘law trapped in amber.’”
Sotomayor in Trump v. Slaughter: “When, exactly is our law ‘trapped in amber,’ and when is it not?”
Justice Brett Kavanaugh in Trump v. Barbara: “This Court’s constitutional precedents do not treat the 1791 or 1868 exceptions as a closed set ‘trapped in amber.’”
Justice Amy Coney Barrett at oral argument in United States v. Hemani: “I agree with you that you don’t need to have just alcohol because that’s all there was at the founding and that would be trapped in amber.”
The expression has become increasingly popular in the lower courts, too. Earlier this week, law professor Richard Re traced the history of the metaphor and its rapid spread over the past two years.
As Re correctly recognizes, though early uses of the phrase evoked a living Constitution – one whose meaning evolves over time – each of the references collected above traces back to a line in the Supreme Court’s originalist decision in United States v. Rahimi, in which the court upheld a federal law that disarms those under a domestic violence restraining order. There, the court used the phrase to clarify that its Second Amendment precedents “were not meant to suggest a law trapped in amber.” The court continued:
[T]he reach of the Second Amendment is not limited only to those arms that were in existence at the founding. Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.
At the time, professor Josh Blackman predicted that the “amber” line would become “the most quoted sentence” in the opinion, and a way for judges to escape the original meaning of the law. I’ll leave the citation counts to more empirically inclined court-watchers, but the evidence Re collects vindicates Blackman’s prediction to this extent: the metaphor has become a flashpoint in the contest over what it means to do originalism.
Properly understood, originalism indeed holds that law is fixed – “trapped in amber,” if you will. But the circumstances to which it applies are not. The problem with the amber metaphor is that courts increasingly use it without distinguishing law from its application. …
My view is that metaphors such as trapped in amber are unhelpful and distract from analysis. If you can’t express your analysis without a metaphor, likely you are eliding a flaw in your analysis. And if you could, but aren’t, expressing your analysis without a metaphor, then the metaphor is a rhetorical device to strengthen an otherwise weak argument. I would just say “fixed” or “not fixed”, and be suspicious of people who don’t.
Posted at 6:03 AM