The Supreme Court handed down a very brief order on Wednesday morning that offers gun regulation advocates a slightly surprising — but likely short-lived — victory.
The order denies relief to litigants challenging Illinois’s ban on semiautomatic assault weapons, and a similar ban enacted by the city of Naperville, Illinois, who had argued both violated the Second Amendment. Had these litigants prevailed in the nation’s highest court, such a decision could have invalidated assault rifle bans throughout the United States.
That said, Wednesday’s order is only a very brief victory for proponents of gun regulation. The case, known as National Association for Gun Rights v. City of Naperville, arose on the Court’s “shadow docket,” a hodgepodge of emergency motions and other expedited matters that the Court sometimes decides without full briefing or oral argument. The most likely explanation for the Court’s latest order is that a majority of the justices believed that this case did not warrant this expedited treatment, not that a majority of the Court will ultimately vote to uphold assault rifle bans. (Notably, Brett Kavanaugh, the median justice on the current, very conservative Supreme Court, is a longtime proponent of legalizing assault weapons.)
The case will be heard by a federal appeals court in late June, and that court’s decision may be reviewed by the Supreme Court under its ordinary, less rushed process for hearing cases.
Nevertheless, the Court’s brief order in the Naperville case is significant less because of what it says about the justices’ approach to gun policy than because it suggests that at least some key members of the Supreme Court have grown disillusioned with the Court’s once-very-frequent use of the shadow docket.
The Court started issuing many shadow docket orders that benefited conservatives during the Trump administration
Historically, the Supreme Court has been reluctant to weigh in on any case before it was fully litigated in the lower courts, and before the justices spent months considering the parties’ briefs and hearing oral arguments. The Court, after all, has the final word on how to interpret US law, so if the justices moved too quickly, they risked handing down an erroneous decision that could not easily be corrected.
Indeed, the Court’s reluctance to bypass its ordinary, very slow procedures was so well-known among Supreme Court practitioners that these lawyers were historically reluctant to even ask the justices for shadow docket relief. As University of Texas law professor Steve Vladeck found in a 2019 paper, “during the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight [shadow docket] applications” asking the justices to block a lower court’s decision, “averaging one every other [Supreme Court] Term.”
The Trump administration, however, abandoned this restraint, and they were rewarded for it. Vladeck found that “in less than three years, [Trump’s] Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone).” And the Court encouraged this tactic — Vladeck found that the Trump administration achieved a full or partial victory in about two-thirds of cases where it sought to temporarily block a lower court opinion.
After Justice Amy Coney Barrett’s confirmation just days before the 2020 election, the Court grew even more aggressive on its shadow docket. Less than a month after Barrett joined the Court, for example, the justices handed down a revolutionary shadow docket decision in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), which significantly expanded the power of religious conservatives to seek exemptions from state laws.
This decision, and others that followed it, showed that the justices were now willing to hand down major, precedent-setting decisions without going through the ordinary deliberative process that the Court has historically engaged in before doing so.
Justices Kavanaugh and Barrett warned that the Court was deciding too many cases too quickly in a 2021 opinion
In October 2021, however, Barrett wrote a brief opinion, joined by Kavanaugh, which suggested that she thought her Court was deciding too many cases without adequate deliberation.
Barrett’s concurring opinion in Does v. Mills (2021) raised two concerns about the shadow docket. One was that it could be used by litigants to “force the Court to give a merits preview in cases that it would be unlikely to take” — that is, by seeking shadow docket relief, litigants could goad the justices into weighing in on legal matters that they would otherwise simply ignore and leave to the lower courts. She also raised the familiar concern that shadow docket cases force the Court to decide important questions on a “short fuse without benefit of full briefing and oral argument.”
It’s easy to be cynical about the timing of Barrett’s opinion in Does, which was handed down in the same year that Democrat Joe Biden became president. Indeed, one of the most frustrating things about this Court’s approach to its shadow docket is that, while the justices were eager to grant expedited relief to the Trump administration when it asked the Court to block lower court decisions undermining its policies, the Court’s GOP-appointed majority suddenly became very reluctant to grant such relief when the Biden administration took over.
That said, there is now a decent amount of evidence that Barrett was acting in good faith when she wrote her Does opinion, and that she and Kavanaugh believe that the Court should be less aggressive about granting shadow docket petitions of all kinds than they were in the Trump years.
The Does case, for example, was one of a handful of decisions where the Court denied shadow docket relief to health care workers who objected, on religious grounds, to state rules requiring them to be vaccinated against Covid-19. Last month, the Court denied a shadow docket request seeking to reinstate West Virginia’s law prohibiting transgender athletes from playing on school sports teams that match their gender identity. And now they’ve denied another shadow docket request attacking a gun law that is most likely opposed by a majority of the justices.
The Court, in other words, has recently shown some restraint on its shadow docket cases, even when such restraint runs counter to the Republican Party’s policy preferences. It has even shown some willingness to grant shadow docket relief to left-leaning litigants when conservative judges engage in particularly egregious overreach, such as in a recent decision where the Supreme Court blocked a notorious Trump-appointed judge’s attempt to ban the abortion drug mifepristone.
Of course, it remains to be seen whether the Court’s newfound reluctance to decide politically charged cases as quickly as possible will remain if a Republican moves into the White House. For the moment, however, it appears that Barrett and Kavanaugh were being sincere when they called for a more cautious approach to shadow docket decisions in Does.