Monday, July 27, 2020

More Leaks From The Supreme Court, All Of Which Make Roberts Look Powerful

The following is an excerpt from this post where the Second Amendment cases are discussed, but the entire post should be of interest to court watchers

Josh Blackman

...Biskupic also provides some insights into the Court's Second Amendment cases this term. In April, the Court issued a per curiam decision in NYS Rifle & Pistol. That opinion held the controversy was moot. Biskupic reveals that Kavanaugh wrote this opinion, but not by himself.
CNN has learned that resolution of that case took many twists and multiple draft opinions. Guided by Roberts, Justice Brett Kavanaugh crafted much of what turned out to be an unsigned "per curiam" opinion — joined by six justices, including Roberts—returning the case to lower court judges.
Wow! "Guided by" As if Roberts was Kavanaugh's "sherpa." How demeaning of the Junior Justice? Whoever leaked this fact was trying to make Roberts look powerful, and Kavanaugh look weak. And that "guided by" line looks even worse in light of Kavanaugh's separate concurrence:
Kavanaugh also wrote a separate statement—this one he signed—suggesting it was time for the justices to resolve conflicting interpretations of Second Amendment rights.
Challenges to other firearms regulations were pending and conservatives who had wanted to clarify the scope of the Second Amendment had to consider whether to bring the issue back to the justices.
In that concurrence, Kavanaugh wrote:
And I share Justice ALITO's concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.
At the time, I read Kavanaugh's concurrence as a signal that there were the votes to grant another Second Amendment case. Kavanaugh is savvy enough, and would not have written what he wrote unless he thought the Court would pick up another case. I was optimistic.
In hindsight, Kavanaugh was wrong. Biskupic reports that at the conference, Roberts signaled that he would vote to uphold the gun control laws:
Roberts also sent enough signals during internal deliberations on firearms restrictions, sources said, to convince fellow conservatives he would not provide a critical fifth vote anytime soon to overturn gun control regulations. As a result, the justices in June denied several petitions regarding Second Amendment rights.
It takes four votes to accept a case and five to rule on it, and sources have told CNN that the justices on the right did not believe they could depend on a fifth vote from Roberts, who had in 2008 and 2010 voted for milestone gun-rights rulings but more recently seemed to balk at the fractious issue.
Finally, on Blue Monday, the Court denied review in 10 Second Amendment petitions.
In mid-June, the high court turned down petitions from 10 challenges to state laws limiting the availability of firearms and when they can be carried in public.
Justice Thomas dissented from the denial of cert. Justice Kavanaugh joined part of Thomas's dissent. In hindsight, it seems Chief Justice Roberts played Justice Kavanaugh. Kavanaugh thought there were four votes to grant cert, and five votes to reverse. He was wrong. I sensed some hostility from Kavanaugh towards Roberts later in the term–especially in South Bay and Calvary Chapel. There may be some built-up resentment.
Once again, this leak makes Roberts look powerful, and his colleagues meek.

The author concludes: 

I suspect some of the leaks come from the Justices themselves; for example, the grumbling about the format for oral arguments. These topics seem much safer to carp about, and do not concern internal case deliberations. The leaks about the cases may come from Justices, or they may come from law clerks authorized to talk by the Justices. And the tenor of the leaks this term are all consistent with a great and powerful Chief Justice–like Oz! The DACA leak suggests that Roberts was in control from the beginning. The Public.Resource leak suggests Roberts can persuade colleagues to flip. The Second Amendment leak suggests that Roberts played Kavanaugh. And the Public Charge leak suggests Roberts is willing to throw crumbs to his liberal colleagues when he is ready to.

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