A Court Trapped in Amber

In United States v. Rahimi, the Supreme Court denied that the Second Amendment is “a law trapped in amber.” That metaphor has now exploded onto constitutional law, appearing in six Supreme Court cases this term and hundreds of lower court opinions. Somehow, an expression that traces back to 1970s liberals has become au courant at the most conservative Supreme Court in generations. What’s more, the metaphor is a negative one. Rather than tell us what the law is, the court’s viral expression tells us what it isn’t. But what, then, is the law? The intuitive answer: alive. In short, the court has indirectly embraced a form of living constitutionalism.

Early History

The idea that a source of law is not “trapped” or “frozen” in amber dates back at least to the 1960s, but the most salient early instance occurred in the 1974 case Richardson v. Ramirez. The Supreme Court, per then-Justice Rehnquist, upheld the constitutionality of felony disenfranchisement laws through an analysis often viewed as originalist. In brief, the court held that felony disenfranchisement could not in itself violate the equal protection clause because that practice not only existed at the time of the clause’s adoption but also was explicitly contemplated in Section 2 of the 14th Amendment.

In dissent, Justice Thurgood Marshall, joined by Justice William Brennan, wrote: “But ‘constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber.’” The quotation there is from Dillenburg v. Kramer, an influential 1972 U.S. Court of Appeals for the 9th Circuit ruling by Judge Shirley Hufstedler. In deeming the issue of felony disenfranchisement serious enough to convene a three-judge court, Hufstedler had argued that the equal protection clause encoded a dynamic principle whose implications could change over time, particularly with respect to voting rights. All three of these jurists – Marshall, Brennan, and Hufstedler – were leading liberals of the era.

From then on, the amber metaphor made regular appearances within the literature on felony disenfranchisement, which was where I first encountered it. The metaphor also appeared occasionally in some other legal contexts. For instance, law professor Akhil Amar invoked amber as a way of criticizing some of Justice Antonin Scalia’s overly stringent forms of Fourth Amendment originalism. Amar instead favored an approach that would allow for greater flexibility and afford more power to juries.

Eventually, in 2021, a footnote in a separate opinion by Justice Neil Gorsuch quoted Professor Stephen Sachs’ use of the metaphor. As Gorsuch related, Sachs has the view that the rules of personal jurisdiction are general law and so adjustable by Congress, rather than “fixed in constitutional amber.” Like Amar, Sachs is an originalist scholar, and he used an amber metaphor to describe a source of law that vested decisional authority at least partly in non-judicial actors who could update for new events.

Apart from some scattered exceptions, the metaphor was essentially absent from judicial opinions, and it went decades without appearing in the Supreme Court. The amber metaphor, we might say, had itself become frozen in amber.

Amber Escaping

In United States v. Rahimi, in which the court uphold a bar on guns for those with domestic-violence restraining orders, the Supreme Court loosened its Second Amendment analysis, embracing “principles” and “common sense” rather than the strict historical analysis that had apparently guided recent originalist rulings. To capture its new approach, the court, per Chief Justice John Roberts, used a vivid metaphor: “[S]ome courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber.” The chief justice cited nothing for that statement, raising the question of whether he knew of the metaphor’s history.

So far as I am aware, Rahimi was the first time that the amber metaphor appeared in a Supreme Court majority opinion. And not only did it appear, but it featured in a critical passage describing the court’s pivot away from stringent originalism.

Other justices immediately seized on this expression. In Rahimi itself, Justices Sonia Sotomayor, Neil Gorsuch, Ketanji Brown Jackson, and Amy Coney Barrett all penned concurrences that quoted the majority’s amber metaphor. Following the majority, three of those justices (Sotomayor, Jackson, and Barrett) cast law trapped in amber as self-evidently bad. Gorsuch, by contrast, wrote of “the people’s directions in the Constitution—directions that are ‘trapped in amber.’”

The metaphor’s importance was not lost on the lower courts. Before Rahimi, lower court decisions on whether the law was “trapped” or “frozen” in “amber” numbered in the dozens. Now, just a few years after Rahimi, they number in the hundreds. Legal scholars have followed suit, with “amber” references and quotations spawning in law reviews nearly as fast as the flies of summer. The amber metaphor then reappeared in Trump v. CASA (concerning whether district courts could issue nationwide injunctions), with both the majority and the dissenters agreeing that equity is not trapped in amber.

The Amber Term

Something new happened this term. By my count, the amber metaphor recently appeared in six different Supreme Court cases, including two majority opinions. Every instance cited Rahimi or a case quoting Rahimi.

The most important example came in the Federal Reserve case, Trump v. Cook: “We see no reason … why our central bank ought to be trapped in amber any more than any other aspect of our constitutional scheme.” Not only did this metaphor-based argument attempt to explain why the unitary executive theory did not apply to the Federal Reserve, but it also suggested that the amber metaphor is applicable to “any other aspect” of constitutional law.

Another example came earlier in the term and, interestingly, involved a statute. Barrett wrote for the court in Watson v. Republican National Committee, the mail-in ballot case: “But historical practice, detached from statutory text, is not controlling. Statutes do not ‘tra[p] in amber’ every contemporary practice on the same subject matter.” So the amber metaphors can help decide statutory cases, too.

A third important example arose in Trump v. Barbara, the birthright citizenship case. Justice Brett Kavanaugh’s partial concurrence and partial dissent concluded that the court could recognize new exceptions to the principle of birthright citizenship. As he wrote: “This Court’s constitutional precedents do not treat the 1791 or 1868 exceptions as a closed set ‘trapped in amber.’” Of all the recent examples, this one may come closest to Justice Marshall’s early use of the metaphor in Richardson. In both instances, a practice that had once been fixed in amber-like law might be so no longer.

Three dissenting opinions this term also discussed amber. In the Federal Trade Commission removal case Trump v. Slaughter, Justice Sonia Sotomayor’s dissent asked a sensible question: “When, exactly is our law ‘“trapped in amber,”’ and when is it not?” (Sotomayor was quoting Cook, which in turn quoted Rahimi.) In Cisco Systems v. Doe, where the court held that the Alien Tort Statute did not create new rights of action to remedy violations of international law, Sotomayor cited Rahimi but implicitly invoked Watson’s use of amber in a statutory case, writing: “There also is no indication that Congress intended to ‘tra[p]’ the ATS ‘in amber.’” Finally, Jackson in Wolford v. Lopez used the metaphor to impugn the court’s approach in a Second Amendment case as resulting “in a ‘law trapped in amber.’”

If the law is not trapped in amber, the Supreme Court seems to be.

Metaphorical Meanings

The amber metaphor is powerful not just because it is vivid, but also because of its ambiguity. Of course, any metaphor invites interpretation. But the amber metaphor is extra indeterminate because the court deploys it negatively, yielding an indirect argument. The court tells us what the law is not, without quite telling us what it is.

A comparison might be drawn with the rhetorical trope of litotes or understatement. Rather than assert that “she’s the best in the class,” someone might say, “She’s no slouch.” Understatement is effective in part because it is indirect, inviting the listener to join in a shared understanding without provoking quibbles about details.

To many justices and readers, a “law trapped in amber” is clearly bad. But why? Amber is a beautiful substance and widely prized. To be “trapped,” however, is not good. And to be trapped “in amber” connotes a more specific image: an insect or other small creature encased, long dead – and forever observed.

The chief justice’s use of the metaphor in Rahimi connotes this image subtly, without spelling it out. Perhaps he could do so because, thanks to movies like Jurassic Park, many of us readily envision what Judge Hufstedler specified in the 1970s – namely, “insects” that have been “frozen” and “trapped in Devonian amber.”

Because the amber metaphor operates indirectly, it invites the reader to imagine its antithesis. Presumably a law that is not “trapped in amber” is free and at large. It may be capable of moving, growing, reproducing, learning – even stinging. It is not just observed and beautiful but doing things. It is alive.

The amber metaphor thus appears to be an understated way of describing a “living” law – or, more familiarly, a “living Constitution.” That interpretation comports with the metaphor’s 1970s association with liberal jurists, but it is also jarring when associated with the most conservative Supreme Court in many decades. Scalia, for instance, was fond of saying that the Constitution is “dead, dead, dead.”

Perhaps the court is embracing the amber metaphor because it conveys the same meaning as the idea of a living Constitution without clearly connoting liberalism. It is a discreet way for right-leaning jurists to embrace ideas they and their allies have long opposed. I have argued that conservatives engaged in legal realignment often borrow ideas from liberals of prior generations. The chief’s use of a metaphor once deployed by Justice Marshall can likewise be viewed as a form of intergenerational borrowing.

Yet understatement matters, and the amber metaphor is not quite the same as a full-throated endorsement of living constitutionalism. Because it is ambiguous and indirect, it leaves the court room to differentiate itself from the liberals of the past. Perhaps the court really means that while the law is not entirely “trapped in amber,” parts of it might be. The meaning or principle of the law could be fixed in legal amber, whereas its applications are not. But because the metaphor does not in itself tell us what, if anything, is fixed, it remains highly interpretable.

Ultimately, the amber metaphor is more evocative than illuminating. If it meant only to disclaim the view that law is totally dormant, then it would provoke little controversy. But to the extent the metaphor suggests a buzzing insect, it makes the “living tree” of Canadian jurisprudence seem placid by comparison. By inviting interpretation, the amber metaphor effectively substitutes for legal analysis. In that respect, it resembles the court’s recent invocations of “common sense.”

The amber metaphor may turn out to be a mere placeholder. It helps jurists reach agreement while slightly dazzling their readers – all without taking any specific stand. Once the court figures out more directly and precisely what it means to say, it may find the metaphor less useful. Only then would the justices themselves break free, leaving their metaphorical amber behind.

Cross-posted from SCOTUSblog.