There’s a troubling trend by certain politicians to salt the ground at the U.S. Supreme Court before more significant firearm-related cases can be argued and decided. Politicians are disparaging the justices in an attempt to politicize the Court and delegitimize decisions even before arguments are heard. It’s unfolding in the cruelest ways, and it threatens the separation of powers between the three co-equal branches of government – the Executive, Legislative and Judicial Branches.

It is also a reminder that November’s presidential election carries with it added significance for the future of the Judiciary.

Just last week, Chief Justice John Roberts rejected a request by U.S. Senate Democrats to meet to talk about Supreme Court ethics and a ginned-up controversy over Justice Samuel Alito flying flags outside his homes in Alexandria, Va., and Long Island Beach, N.J. The first incident stemmed from a 2021 dispute with a neighbor who personally targeted Justice Alito’s wife, Martha-Ann, seemingly as a form of protesting the violence of Jan. 6. Mrs. Alito made the sole decision to fly an inverted flag at their Virginia residence in response to a neighbor’s pointed attacks. More manufactured controversy stemmed from Mrs. Alito flying an “Appeal to Heaven” flag at their New Jersey residence in 2023, despite San Francisco’s City Hall flying a similar flag, only to quietly take it down last month after the media uproar.

Justice Alito responded to Senate Democrats’ demands that he recuse from cases involving Jan. 6 based on these contrived controversies. He explained, in part, that a “reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases” would not conclude that he needed to recuse. But the harassment campaign against the Supreme Court will certainly continue. This latest attempt is a reminder that the Court will be a factor in the upcoming election and the future of Second Amendment rights for law-abiding citizens.

Former President Donald Trump campaigned in 2016 with a promise to nominate justices “first and foremost, based on constitutional principles, with input from highly respected conservatives and Republican Party leadership.”

From that came Justice Neil Gorsuch, who President Trump described as “very much in the mold of” the late Justice Antonin Scalia. Justice Brett Kavanaugh’s nomination followed, and was marked by a tumultuous confirmation hearing that included uncorroborated, decades-old allegations. Justice Amy Coney Barrett’s nomination and confirmation followed in 2020, giving President Trump three additional originalist justices on the bench to serve alongside Chief Justice Roberts and Associate Justices Clarence Thomas and Alito.

Since President Joe Biden took office, he nominated Justice Ketanji Brown Jackson who was confirmed in 2022. With the 2024 election looming, President Biden is making promises to nominate his own brand of jurist to the Supreme Court.

Target SCOTUS

“The next president, they’re going to be able to appoint a couple justices, and I’ll be damned — if in fact we’re able to change some of the justices when they retire and put in really progressive judges like we’ve always had, tell me that won’t change your life,” President Biden told a Philadelphia crowd last month.

The Supreme Court currently has a 6-3 conservative majority. That hasn’t sat well with liberal firebrands on Capitol Hill who have railed against the Court and, at times, threatened to upend the respect for the Supreme Court’s independence.

Senate Majority Leader Chuck Schumer (D-N.Y.) infamously threatened Supreme Court justices while the Court was considering an abortion case in 2020.

“I want to tell you, Gorsuch… I want to to tell you Kavanaugh…, you have released the whirlwind, and you will pay the price,” Sen. Schumer said. “You won’t know what hit you if you go forward with these awful decisions.”

Chief Justice Roberts rebuked Sen. Schumer’s remarks in a rare statement that read, in part, “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.”

That’s not the only time, though, that political zealotry has overtaken the longstanding norms regarding elected representatives’ respect for the independence of the judiciary. Sen. Sheldon Whitehouse (D. R.I.) took direct aim at the Supreme Court, particularly on matters of gun rights and gun control, when he wrote in an amicus brief arguing against NYSRPA v. City of New York, “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

Packing Threats

That wasn’t an idle threat. President Joe Biden fiddled with the idea of packing the Supreme Court. He signed an Executive Orderto create a Presidental Commission on the Supreme Court of the United States. The clear purpose was to evaluate the ways in which he could re-shape the Supreme Court to benefit his progressive agenda, which includes undermining Second Amendment rights.

Among the ideas that were studied – and eventually discarded – were: doing away with the lifetime appointments of the justices; changing the membership and size of the Court, as well as its case selection, rules and practices; and, most astonishingly, broadly reconsidering the Court’s role in the Constitutional system.

Democrats went as far as to introduce legislation in 2021 to the expand the Supreme Court from nine to 13 justices. Given the Court’s 6-3 conservative majority, the addition of four more justices nominated by President Biden was certainly aimed at tipping the Court toward a liberal, progressive agenda, potentially for a generation.

It is no surprise that Democrats have their sights set on the Supreme Court while there are significant cases pending at the Court that relate to Second Amendment rights and the firearm industry. Those include United States v. Rahimi, which will determine whether federal law prohibits firearm possession by those subject to domestic violence restraining orders. There’s also Garland v. Cargill, which involves a challenge to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) banning of bump stocks through the administrative rulemaking process. That decision potentially could have an impact beyond the regulation of bump stocks, as it could address more broadly the ATF’s ability to craft criminal laws that are not voted upon by Congress.

Relatedly, the Court’s administrative law rulings could impact legal challenges to the ATF’s overreaches. One recent example is the ATF’s “Engaged in the Business” rule, which requires nearly all private firearm sellers to obtain a federal firearms license and run background checks. Another is the ATF’s pistol brace rule that unilaterally reclassified AR-style pistols equipped with pistol braces as short-barreled rifles (SBRs) and subjected them to National Firearms Act (NFA) regulation.

Likewise, there are pending cases challenging the constitutionality of some state laws banning Modern Sporting Rifles (MSRs) and standard-capacity magazines. NSSF is challenging Illinois’ MSR and magazine ban, and there are similar cases pending review at the U.S. Court of Appeals for the Fourth and Ninth Circuits.

All told, there is a lot at stake for not only the preservation of Second Amendment rights, but, more broadly, the Supreme Court’s ability to carry out its duties without interference. The attacks by politicians on members of the Court are as deliberate as they are unnerving. It is an attempt to fuel the narrative that any decision some politicians disagree with can be discarded and ignored. Undermining the Supreme Court’s legitimacy is more than a soundbite. It can do lasting damage to our constitutional system of the separation of powers, as it seeks to supplant the Court’s reasoned decisions and the rule of law with demagoguing politicians as the judge and jury.

— Shelby Baird Smith, NSSF

About the Author
Shelby Baird Smith is NSSF’s Chief Litigation Counsel. She previously clerked for Judge Thomas M. Hardiman on the Third Circuit Court of Appeals and clerked for Justice Samuel A. Alito on the U.S. Supreme Court of the United States.