UPDATE: Joan McCarter
Perhaps the Supreme Court is feeling more cautious about blowing everything up from the shadow docket. On Wednesday, they refused to intervene and impose the injunction on the Illinois bans as the case winds its way through the courts. It will come to them eventually, and they will probably decide that states and localities don’t have the right to ban these weapons, but they are at least showing some restraint now.
On May 1, Supreme Court Justice Amy Coney Barrett agreed to hear an emergency application that could wipe out any state and local laws banning assault weapons and high-capacity magazines in all 50 states. That means that once again, the court could use the so-called “shadow docket” to rule on a highly controversial political issue.
In National Association for Gun Rights v. City of Naperville, a gun shop owner and a gun rights group are challenging a Naperville, Illinois, ordinance and a similar state law that ban ownership of the weapons and ammunition. The gun shop owner claims that his business is being harmed by the bans and that they are a violation of the Second Amendment. The laws were passed after last year’s mass shooting at an Independence Day parade in Highland Park.
The plaintiffs asked a district court for a temporary restraining order and a preliminary injunction to block enforcement of the laws, and were denied. They appealed that decision and asked the Seventh Circuit court for an emergency injunction pending that appeal. The circuit court rejected the motion, so the plaintiffs went to the Supreme Court and the appeal landed in Barrett’s lap, as she’s the justice for that circuit. It’s up to her and her fellow justices to either decide the matter in the shadows with no public arguments and no discussion (hence the “shadow docket”), or refer it to the full court for consideration.
That decision could come any day now. Barrett asked for arguments from the city and state on May 1, giving them until Monday, May 8, to respond. It could easily go either way, as Vox’s Ian Millhiser wrote last week.
On the one hand, you have a conservative Supreme Court majority that clearly has no problem using the shadow docket to upend decades of precedent and profoundly alter the law. They hid behind the shadow docket when they allowed Texas to ban abortion months before issuing the Dobbs v. Jackson Women’s Health decision that overturned federal abortion rights protections nationwide. They’ve used the shadow docket to blow up voting rights, to hinder President Joe Biden’s response to the COVID-19 pandemic, and to gut the Clean Water Act, to give just a few examples.
There’s also Justice Brett Kavanaugh, who Millhiser deems “the median justice on a Supreme Court dominated by Republican appointees.” In 2011, Kavanaugh was sitting on a federal appeals court that upheld the District of Columbia’s ban on assault weapons. He dissented, arguing that assault weapons aren’t more dangerous than legal weapons like handguns. He also argued that they are not unusual, because at the time he wrote the dissent “about two million semi-automatic AR-15 rifles have been manufactured.” The crux of the Illinois laws is that they are “dangerous and unusual” weapons, which means under the Supreme Court precedent set in District of Columbia v. Heller in 2008, they can be regulated. In 2011, Kavanaugh clearly disagreed.
But then there’s this:
In a fall 2021 concurring opinion, however, Barrett expressed concern that her Court was deciding too many cases on its shadow docket, warning that litigants were using the shadow docket to get the Supreme Court to opine on cases it ordinarily would not hear, and “on a short fuse without benefit of full briefing and oral argument.”
Kavanaugh concurred with Barrett on that opinion, so he might be feeling a little cautious about deciding a case that would be momentous for stepping all over states’ rights to protect their citizens. At least, he might be reluctant to do it in secrecy.
Chief Justice John Roberts is also on the record suggesting that the shadow docket has been abused. He signed onto a dissent last year from Justice Elena Kagan, blasting the court’s majority for using the shadow docket to issue a momentous Clean Water Act decision on the flimsiest of grounds. “The request for a stay rests on simple assertions—on conjectures, unsupported by any present-day evidence, about what States will now feel free to do,” Kagan wrote.
It seems pretty likely that this ultra-far right majority full of textualists will continue to completely skip over the part of the Second Amendment that explains that “a well regulated Militia, being necessary to the security of a free State” was the whole point of the right to bear arms. But they might actually be constrained from doing it secretly.
The caution we’re seeing from a few of the court’s justices on ruling via shadow docket could be an indication that reform calls are having an effect, and that all the attention on the court—from its extremist decisions to its profound lack of ethics—is making them just a little bit more cautious. We should find out any day now when we hear from Barrett.
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