Thread by @tommy_bennett

Justice Kavanaugh's concurrence in Bruen is a perfect example of what @barryfriedman1 @susansmelcer @WashUChancellor and I call a "pivotal concurrence." cornelllawreview.org/2020/07/29/div… What's that, you ask? 🧵

Bruen was decided by a vote of 6-3. Importantly, all six members of the majority also signed onto the majority _opinion_. The general rule is that an opinion that garners the votes of a majority of the court is binding law. So we can ignore the concurrences, right? Not so fast.

In our article, we identify a special kind of concurrence that has outsized importance, even though the formal voting rules say it has no force of law. We call this a pivotal concurrence, and they're surprisingly common (several per term).

Pivotal concurrences have 3 features. 1. There must be a majority (not a plurality) opinion. 2. One or more justices who are numerically necessary to the majority must write a concurrence. 3. That concurrence must state a different legal rule from the majority opinion.

So, in Bruen, Kavanaugh and the Chief joined the majority opinion—making it the law—but also wrote separately "to underscore two important points about the limits of the Court's decision." This kind of language is emblematic of a pivotal concurrence.

Pivotal concurrences set up a clash: formal rules of voting in collegial courts vs. a predictive mode of legal reasoning. In the next 2A case, does anyone doubt that the briefs will be targeted squarely at Kavanaugh and Roberts? But why, if they are but two votes in the majority?

The reason, we found, is that lower courts are much more likely to pay attention to pivotal concurrences than they are to non-pivotal concurrences. That tendency is at its apex in salient, constitutional cases—ones just like Bruen.

So what does all this mean? In practice, Justice Kavanaugh's concurrence will play a substantial role in shaping how Bruen gets applied by government actors and lower courts.

Perhaps Kavanaugh was inspired by his old boss, Justice Kennedy, who concurred in the landmark Commerce Clause case U.S. v. Lopez, noting: "I join the Court's opinion with these observations on what I conceive to be its necessary though limited holding.

What happened when lower courts came to apply Lopez? The Sixth Circuit's opinion is illustrative: forget the majority; we're following Kennedy. As Reynolds & Denning put it in an article title, the "Court held a constitutional revolution" and, because of Kennedy, "nobody came."

Maybe the same will be true of Justice Kavanaugh's concurrence. I'd bet that the path of Second Amendment lies squarely with Justice Kavanaugh—and the lower courts.