A gun case at the Supreme Court prompted a 5-4 lineup that you don’t see every day: Justice Amy Coney Barrett casting the tie-breaking vote alongside Chief Justice John Roberts and the three Democratic appointees.
Barrett and Roberts, two Republican appointees, made a majority to side with the Biden administration — for now — in a case involving “ghost gun” kits that people can buy online to make untraceable weapons at home. Specifically, Tuesday’s order reinstated regulation of these kits like firearms, requiring makers and sellers to obtain licenses, use serial numbers and do background checks.
The Biden administration appealed to the justices after Texas federal judge Reed O’Connor, a GOP appointee, vacated the rule nationwide. Tuesday’s order paused O’Connor’s action while litigation continues — so it’s important to remember this isn’t the final word on the matter.
But why did Barrett and Roberts vote the way they did, even on this temporary measure?
We can engage in some educated speculation, but this shadow docket case serves as the latest example of why it would be nice if the justices explained themselves in these types of orders, even if only briefly.
Generally, the Republican majority votes along party lines when it comes to guns, as it did in the 6-3 Bruen ruling in 2022 that further expanded the Second Amendment. Though Tuesday’s case, Garland v. VanDerStok, isn’t a Second Amendment case per se, it’s still unsurprising that Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh noted their disagreement with the majority’s stay.
It’s not unheard of for Roberts to side with Democratic appointees. It’s a sign of how far right the court is today that he sits on its relative left (depending on the case).
When it comes to Barrett, one explanation for her vote is due to the nationwide aspect of the judge’s ruling. In court papers to the justices ahead of Tuesday’s order, the government cited a concurring opinion Barrett joined earlier this year, which questioned the wisdom of the sweeping sort of action the trial judge issued in this case. To be sure, that opinion from earlier this year was written by Gorsuch and also joined by Thomas in addition to Barrett. So if that’s the reason she sided with the government for now, Gorsuch and Thomas may have placed more weight on some other consideration, or considerations, in choosing to dissent from what amounts to a gun control measure. Whatever the justices’ respective reasoning, it’s worth emphasizing again that this is a temporary order. Recall the recent Voting Rights Act ruling where Roberts and Kavanaugh joined the Democratic appointees in the 5-4 decision favoring voting rights, after Kavanaugh went the other way on the shadow docket. Time may tell if the current lineup holds, and whether the justices explain themselves down the road either way.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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