Conservatives try to mask the horror of what the Fifth Circuit has done [in US v. Rahimi] by making a due-process argument. They say that a restraining order is vastly different from a criminal conviction and that people should not have a fundamental constitutional right taken away from them without the full benefit of a trial. There is a version of this argument I could agree with: I don’t, for instance, think people should lose their voting rights based on a prosecutorial indictment.
But what conservatives ignore is that a restraining order is far from a mere allegation. A complaint is filed, a judge reviews it, and the defendant has an opportunity to object. There is a process. Restraining orders are not, as Judge James Ho suggested in his concurrence to the Fifth Circuit ruling, a “tactical device” used by spurned women to get back at their former lovers.
I don’t think the Supreme Court will go for Ho’s and the Fifth Circuit’s framing of the issue. Alito will, and probably Thomas, but I think the other conservatives will blink at the prospect of rearming abusers. Even though a restraining order is not the same as a criminal conviction, I just can’t believe that Roberts and Amy Coney Barrett want this much blood so directly on their hands. And I don’t think the liberals will use this case to make some larger point about pretrial detention or the revocation of voting rights to felons. The Fifth Circuit has to lose here—I can’t bear to imagine the consequences if it doesn’t.
— Elie Mystal in Supreme Court Preview: This Term, It Can Always Get Worse