Chairman of the Joint Chiefs of Staff Mark A. Milley, right, speaks with U.S. Supreme Court Associate Justices Brett M. Kavanaugh, Neil M. Gorsuch, Elena Kagan and Chief Justice John G. Roberts Jr. at the State of the Union address Tuesday evening, Feb. 4, 2020, at the U.S. Capitol in Washington, D.C. (Official White House Photo by D. Myles Cullen)
Recently, New York gun owners fought their way through the federal court system against unconstitutional gun laws imposed on them by New York City. When the case got to the Supreme Court, New York City leaders, knowing they would lose, repealed the laws. Gun owners continued the fight to ensure state and local governments wouldn’t be allowed to enforce similar laws in the future.
The court’s members are made up of at least five self-professed originalists. Two of the originalists, Chief Justice John Roberts and Justice Kavanaugh, sided with the court’s liberals against gun owners. Roberts’ abandonment of gun owners seems to have been caused by threats from Democrats to “restructure” the court. Remaking the court was a popular theme among Democratic candidates for president in the primary. That sort of court tampering is abhorrent. The Wall Street Journal explains:
Rhode Island Senator Sheldon Whitehouse and four other Democrats also weighed in with an amicus brief threatening the Justices if they didn’t follow their orders to drop the case. “The Supreme Court is not well,” they wrote. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”
The majority buckled and ignored previous rulings to do it. As Justice Alito writes, the Court’s precedents hold that “a case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Plaintiffs want to transport their firearms without worrying about getting arrested if they stop somewhere along the way. The city even admitted in oral arguments that it’s unclear whether this is allowed. Justice Alito says this and more make the rule’s violation of the Second Amendment “not a close call.”
On the mootness point, Justice Alito also pokes his colleagues with this hypothetical: “A State enacts a law providing that any woman wishing to obtain an abortion must submit certification from five doctors that the procedure is medically necessary. After a woman sues, claiming that any requirement of physician certification is unconstitutional, the State replaces its old law with a new one requiring certification by three physicians. Would the court be required to dismiss the woman’s suit?” You know the answer.
Justice Kavanaugh’s role here is curious because, while he joined the majority on mootness, he wrote a concurrence agreeing with the dissent on the Second Amendment merits. This looks to us as if he is trying to protect the Chief Justice from being the fifth vote, and the sole “conservative,” providing a liberal victory while making clear he’s still a solid vote himself for gun rights. The phrase for this is too clever by half.
Justice Kavanaugh may agree with the Chief that the Court needs to avoid political controversies, especially with Democrats threatening to pack the Court if they win the White House and Senate in November. But the Court’s timidity on gun rights amid Senate threats means that liberal and media intimidation will escalate. The Court hasn’t taken a Second Amendment case in a decade, even as cities and states erode its landmark Heller decision bit by bit. The Court is sending a signal that the Second Amendment is the exception in the Bill of Rights, a second-class freedom.
“By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced,” Justice Alito warns. He’s right but too polite.
The Chief Justice is carving out a reputation as a highly political Justice whose views on the law can be coerced with threats to the Court’s “independence.” The danger for the Court is that, in bending to these threats, the Chief is compromising the very independence he claims to want to protect.
