The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For a generation, Justice Kennedy was the Court's swing vote. Erwin Chemerinsky used to joke that if he could, he would have put Anthony Kennedy's face on the cover of the brief. Now we are seeing similar appeals to the Court's new median voter, Justice Kavanaugh.
Today's New York Times includes a guest essay by Kathy Hochul. The Governor of New York wrote about Rahimi. But in practice, the essay functions as an amicus brief aimed at Justice Kavanaugh. She extolled his Bruen concurrence, and said there was a "split" with the majority:
Before oral arguments are heard, there's no way to tell which way the Supreme Court will rule. The precedent set by Bruen is extraordinarily troubling. Yet even within the court's majority in Bruen, there was a split. Justice Thomas kept his focus on historical arguments. But a concurrence by Justice Brett Kavanaugh, in which Chief Justice John Roberts joined, left room for certain basic protections, noting that "properly interpreted, the Second Amendment allows a 'variety' of gun regulations."
Huh? Justice Kavanaugh joined the majority opinion in full. There was no "split." But, Justice Kavanaugh did what he always did–reach out to decide issues that were not in front of the Court in order to signal moderation. He did so in Bruen, Dobbs, and other cases. Regrettably, Justice Kavanaugh has taken the mantle from Justice Kennedy as the chief mediator of the United States.
Indeed, Governor Hochul claimed that the concurrence "helped inform" New York's response to Bruen.
This concurrence helped inform New York's response to Bruen. After New York State's century-old gun law was overturned, I took immediate steps to restore protections from gun violence, including signing new laws to strengthen training and gun licensing requirements.
To paraphrase Chief Justice Roberts in Students for Fair Admissions, it is poor practice to read a concurrence to figure out what the majority opinions means. Moreover, much of New York's legislation amounts to "massive resistance" of Bruen, that finds no grounding even in the Kavanaugh concurrence.
Hochul ends with a naked emotional appeal to Justice Kavanaugh, laced with the obvious gender-motivated violence charge:
An extreme, out-of-control Supreme Court put gun safety laws at risk in Bruen. Across America, survivors of domestic abuse will now wait in fear to see whether Justice Kavanaugh and his colleagues deem laws that protect survivors to "properly" interpret the Constitution.
Over the next year, we will see a similar litany of appeals to Justice Kavanaugh. The subtext is clear: rule against Rahimi and atone for the allegations made during the confirmation hearing. Preview: it won't work. Nothing will ever make these people not want to destroy Justice Kavanaugh.