Among the most controversial decisions of the last U.S. Supreme Court term were ones involving guns and religion. California’s Supreme Court obviously can’t disagree with the high court’s constitutional opinions in those areas, but it might have used a subtle means of expressing disapproval — depublishing Court of Appeal opinions that followed the precedents.

The Fifth District Court of Appeal’s partially published opinion in People v. Velez interpreted the U.S. Supreme Court’s Second Amendment decision in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U.S. _ [142 S.Ct. 2111] as making “clearly unconstitutional” part of California’s statutory scheme for issuing concealed-carry firearms.

In People v. Calvary Chapel San Jose, the Sixth District Court of Appeal’s opinion reversed contempt orders imposed for a church’s noncompliance with state and county requirements enacted to combat the COVID pandemic. The appellate court concluded the restrictions were “facially unconstitutional pursuant to the recent guidance of the United States Supreme Court regarding the First Amendment’s protection of the free exercise of religion in the context of public health orders that impact religious practice.” The “guidance” came from a few shadow docket decisions, including South Bay United Pentecostal Church v. Newsom (2021) 592 U.S. __ [141 S.Ct. 716] (opinion, concurrences, and dissent here, here, here, and here).

California’s Supreme Court denied review in both Velez and Calvary Chapel. However, although it opted not to opine on the merits of those cases, the court depublished both Court of Appeal opinions.

Depublication is usually employed to eliminate the precedential effect of an opinion the court believes is erroneous in its analysis or even in its bottom-line judgment. (See Justice Joseph Grodin’s article, The Depublication Practice of the California Supreme Court (1984) 72 Cal. L. Rev. 514, 522 [“Depublication is most frequent[ly] used when the court considers the result to be correct, but regards a portion of the reasoning to be wrong and misleading.  There are times, to be sure, when the supreme court considers the result to be wrong as well,” fn. omitted.]

The court has previously depublished because it didn’t like a Court of Appeal opinion. It’s possible Velez and Calvary Chapel are variations on the theme: indirectly criticizing U.S. Supreme Court decisions by throwing some shade.

[November 18 update: No shade this time as the Supreme Court keeps on the books an opinion finding a Second Amendment violation.]