Of all the disappointments delivered in the recent Supreme Court term, perhaps the greatest was the Court’s refusal to bring an end to Snope v. Brown and Ocean State Tactical v. Rhode Island. Especially galling was Justice Brett Kavanaugh’s statement the Court “should and presumably will address the AR-15 issue soon, in the next Term or two.”
The Court’s reluctance to hear Snope raises some interesting questions about the Court itself. The case, then known as Bianchi v. Brown, came before the Court in 2022 after the Fourth Circuit Court of Appeals had upheld Maryland’s assault weapons ban. The Supreme Court granted certiorari; vacated the lower court’s ruling; and sent the case back to the Fourth Circuit to review in light of the recent decision in Bruen.
After some time-delaying games, the Fourth Circuit reaffirmed its judgement that military-looking weapons could be banned, a direct affront to not only Bruen, but Heller, as well, and the case once again was up for Supreme Court review. It was scheduled for conference a dozen times. Even though only four of the nine justices were required to grant certiorari, review was denied at the end of June.
This is nonsense: The guns included in these bans clearly meet the “in common use for lawful purposes” standard affirmed by the Supreme Court in U.S. v. Cruickshank, U.S. v. Miller, District of Columbia v. Heller, and Justice Samual Alito’s concurrence in the per curiam ruling in Caetano v. Massachusetts. Gun bans are clearly unconstitutional based on the history and tradition metrics set out in Bruen. Snope has all the earmarks of a major constitutional case. In addition, a well-considered opinion in Snope could not only handle assault weapons bans, it quite possibly could knock out magazine bans, as well, simply by ruling a magazine is a vital component of a semiautomatic firearm, not an accessory.
It’s very frustrating to realize the Court cannot be compelled to explain its inaction on a constitutional issue as well as lower-court defiance of its jurisprudence. The Supreme Court has total control over the process and there is no review.
However, Congress gave the Supreme Court total authority; Congress can take it away.
Congress passed the Judiciary Act of 1891 to reduce the Supreme Court’s workload. Up to that time, the Court was required to accept almost every case, and its caseload had increased nearly 400% in just the 27 years following the end of the Civil War.
The act created a new layer of federal appeals courts between the district courts and the Supreme Court and gave the Supreme Court some power to select the cases it would hear.
This worked for a while, but as the nation grew, so did the number of lawsuits. By 1921, the annual caseloads were closing in on those from the late 19th Century and justices were arguing for the power to select all cases to be heard.
Enter William Howard Taft. In 1921, eight years after leaving the Oval Office, Taft became chief justice of the Supreme Court, a post he would hold until his death in 1930. The same year, Taft assigned associate justices Willis Van Devanter, George Sutherland, and James McReynolds (who wrote the majority opinion in Miller) to draft a new law and sell it to Congress.
The Judiciary Act of 1925 gave the Supreme Court complete control over which cases would be heard. Any case approved for a hearing would have to receive a writ of certiorari granted by the court and those choices were not subject to any outside review. The court could accept whatever struck its fancy.
The law was a success, at least from the Court’s point of view. From 1925 to 1995, the average annual caseload dropped 29 percent. Unfortunately, the decline didn’t end there: From 1995 through the end of the current term, the average number of cases decided each year by the Court plunged 49% to 80. In the term that recently ended, a total of 65 cases were decided. Based on the 16% increase in its budget request for 2026, we’re paying a lot more but getting a lot less.
Congress has the power to amend or repeal the Judiciary Act of 1925. Rather than doing away with the certiorari process altogether, carve out lawsuits directly impacting the enumerated rights or regarding state laws that violate the Constitution and require their timely review by the Supreme Court.
This wouldn’t impact the Court’s autonomy or the separation of powers: Congress has been passing laws like this since 1791. However, it might finally get us some action on some critical issues.
About Bill Cawthon
Bill Cawthon first became a gun owner 55 years ago. He has been an active advocate for Americans’ civil liberties for more than a decade. He is the information director for the Second Amendment Society of Texas.
