The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Why was the Supreme Court's decision in RNC v. DNC unsigned?

Because applications for stay decided without oral argument are (in my experience) always unsigned, per curiam decisions.

|The Volokh Conspiracy |

Linda Greenhouse's column criticizes the Supreme Court's recent order in RNC v. DNC, which considered absentee ballots in Wisconsin. She criticizes the majority for issuing an unsigned, per curiam decision.

I wonder how Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh understand the word "ordinarily." And I wonder why the opinion was issued per curiam — "by the court." Did none of the five have the nerve to take ownership by signing his name?

In contrast, Greenhouse notes, the dissenters signed their opinion:

The other three dissenting justices all signed Justice Ginsburg's opinion; she spoke for them all.

The Court's common practice is to issue unsigned, per curiam opinions in response to stay applications that are resolved without oral arguments. There may be exceptions. I welcome any tips from Greenhouse, who has studied the Court far longer than I have, or anyone else. But I can't think of any off the top of my head. In contrast, dissents from per curiam decisions are always signed. I have never seen a per curiam dissent.

Indeed, we cannot presume that a Justice joins a per curiam decision on a stay application, simply because he or she does not dissent. Several of the Justices have reiterated this point over the years. We can only figure out the vote count in such a per curiam case where there are four dissenters; then we know who the five members were that constituted a majority.

There is nothing to "wonder" about here. There are no questions of "nerve." We are dealing here with the Court's standard operating procedures.

Advertisement

NEXT: Florida City Closes Barbershops Because of Coronavirus, but the Cops Are Still Getting Haircuts

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

Please to post comments

98 responses to “Why was the Supreme Court's decision in RNC v. DNC unsigned?

  1. These picayune details are of no moment. They are trying to rally people up for Maduro/Erdogan-esque Court Packing. Full stop. That is all this is.

    1. American has enlarged its Supreme Court a number of times.

      Why do you hate America? Is it all of this damned progress? Persecution of straight whites who claim to be Bible-believers? Tacos, ravioli, and egg rolls in public school lunchrooms?

      1. Unlike yourself reverend, I am not a religious person. I just dont want to live in a banana republic where every aspect of life is reduced to a ethnic patronage system. I remember in another post you claimed to own multiple vehicles (contrary to your environmentalist bona fides). all of them will be expropriated in the new regime.
        Free speech (and who knows what else) will fall as well. Third world values dont succumb to magic dirt.

        1. Get an education, sam123. Focus on standard English.

          Also, recognize that the bigots have lost the culture war and that this is a good thing — although not for you.

          1. Oh Rev, weren’t you just saying that the right won the culture war on guns just a bit ago. Don’t get your talking points mixed up. I know it’s kinda hard when you aren’t a very good actor in the first place.

            1. You are mistaken. At best.

    2. You’re assuming the Court will allow D Biden to become president. As Kavanaugh said in a fit of rage, what goes around comes around. As here.

  2. In the interests of transparency, the courts shouldn’t be doing squat unsigned. That’s separate from whether this was just business as usual.

  3. You can’t have a per curiam dissent. If per curiam means “by the court,” then a dissent by definition is not the opinion of the court. So of course the dissenters signed.

    1. I came here to say exactly that, congratulations on beating me to the punch!

  4. In my experience appellate courts never issue opinions with a stay. It’s always just “stay granted” or “stay denied”. I assume they don’t want to create a body of case law on provisional remedies.

  5. Awesome fact check. You got her! I mean, this kind of pedantry may not really address her column generally, but it will serve as a tonic to the troops.

    1. Right.

      No point engaging with the rest of the piece. If Blackman even hinted that Greenhouse had made some valid points it would look bad on his permanent record.

      Just find a mistake and trumpet it. That’ll get the attention he wants.

      1. Yes SCOTU/s should not rewrite Wisconsin law and upend Purcell because doing so wouldve reached your preferred outcome. There should be IQ tests before voting which should impair the effectiveness of democrats voter dilution strategy

        1. Get an education, sam123. Start with standard English.

          1. You really are a brilliant troll (perfectly embodying both the millenarian strain of progressivism and its most racially resentful component) or you just have some sexual fetish for exurban Trump supporters which consumes every crevice of your mindspace and every waking hour of your life.

            1. I was a copy editor for a while. I do not respect illiteracy. I also dislike bigots. I guess we are just not going to get along well.

              If my positions on literacy and bigotry bug you, ask Prof. Volokh to censor me.

        2. Sam – show your work.

    2. He picked out the only semi-rational portion.

      The rest of the column is pure nonsense.

      1. Huh?

        Nonsense? The court said that courts should “ordinarily not alter the election rules on the eve of an election,” so they didn’t think the District court should do that here.

        Is it just possible, as Greenhouse says, that these are not “ordinary” times? I mean, the court is unwilling to hold oral argument. Perfectly normal, right? The WI court has suspended civil trials. Perfectly normal.

        “Ordinarily!”

        1. Well, of course it’s possible these aren’t ordinary times. The times are always non-ordinary in SOME regard.

          It’s just possible that the Supreme court thought the times weren’t un-ordinary enough to justify altering election rules on the eve of an election.

          1. If Blackman has a problem on substance, he should engage on it. Not this penne-ante stuff.

            1. What’s pasta got to do with this?

          2. It’s possible, but if so maybe they could have offered a clue as to just how extreme consitions need to be to be regarded as not ordinary.

            You are usually pretty cynical about the motives of governmental actors. But here you abandon that cynicism. Why is that, I wonder?

      2. Only an “originalist” would deem a pandemic “ordinary” circumstances.

        1. “Only an “originalist” would deem a pandemic “ordinary” circumstances.”

          …..c’mon. That’s pretty, pretty, pretty good.

          Probably going to steal that for use on a more literate blog that has a higher quality of people that deals with legal analysis.

          1. …so, uh, where is that? Asking for a me.

  6. Meanwhile, Trump is seizing medical equipment being shipped to hospitals and redistributing it for political advantage.

    Can’t wait to see the defenses of that scumbag maneuver from the Trump-worshippers here.

    1. Let them have their fun, bernard11. If you heard some of the things being planned for implementation during a Democratic administration, you wouldn’t want to be wearing clinger shoes.

      Spoiler: Nope, not gonna provide any hints. Let them enjoy the revelations in real time.

    2. How is that of any relevance to this post?

      1. The comment mentioned that Republicans are reported to be using the pandemic to reward clingers and punish others. This bothers some people. I say ‘let them have their fun’ because I am content with respect to the relatively predictable future.

    3. No mention of Cuomo doing the same?

      1. No evidence of Cuomo doing the same.

    4. Didn’t you want Trump to use the Defense Product Act?

      Shouldn’t he use it to shift ventilators from Colorado to NY?

      1. If that’s what he’s doing, he should do so transparently.

        There’s no authority cited for these confiscations, and it’s not clear where the equipment goes, or how it is distributed.

        1. it’s not clear where the equipment goes, or how it is distributed.

          And the Administration is refusing to provide information.

          Come on, A.L. That’s not right and you know it.

          1. The administration is providing information on where plenty of ventillators go. Thousands have gone to New York.

            It’s an order for ventillators that is shifted to the FEMA stockpile, then out of the FEMA stockpile, they are delivered to the various states which have a greater need

            1. You are making things up; the administration is providing none of that information.

              FEMA denies this is them
              https://talkingpointsmemo.com/edblog/fema-denies-involvement-in-ppe-seizures

              1. “You are making things up;”

                Of course he is!

                Really, Sarcastr0. You’re like Charlie Brown and the football.

                “Hey, Sarcastr0. This time I’m arguing in good faith! Really! You just have to engage with me and give me some citations and evidence and ….

                Oh. You’re on your back again? How did that happen?”

                1. Don’t think my formal assumption of good faith is the same as actually being that gullible.

                2. Yeah, it’s hard arguing with Sarcastro. Say something, and he lies and shifts the goalposts somewhere else.

                  1. Thanks for the insults. I note you did not respond to my refutation of your speculation about what the Trump administration is totally doing.

              2. The administration is providing all sorts of information. Why lie, especially when it can be countered so easily.

                Here’s the list on what states got what from the stockpile.

                https://www.usatoday.com/story/news/investigations/2020/04/10/rare-look-stockpile-shows-which-states-got-supplies-amid-covid/5126900002/

                As for your article, you’ve shifted from ventillators to something else entirely. It could be a different agency.

                But once again, you asked for this. You demanded Trump use the DPA to prioritize. And now that it’s happening, you’re bitching about the priorities. There are boatloads of information on the states getting critical supplies from the stockpile. The stockpile that Obama never refilled.

                1. “The administration is providing all sorts of information.”

                  You don’t read articles, do you?

                  The statement was released Wednesday (to the House) after criticism (from the House) that there was no information. So, no, it’s not correct to say that they are providing “all sorts of information.” The most basic facts are (sometimes, begrudgingly) released. Maybe.

                  And you also seem to confuse the stockpile, with the DPA, with authority to collectively bargain and assign; these are three different things.

                  Plus the gratuitous and incorrect BUT OBAMA.

                  Three years, man. Three years. This is really impressive. I’m old enough, and unlike you NOT STUPID ENOUGH to remember when conservatives were complaining about Democrats complaining that Obama inherited a difficult economy …. in his first few months.

                  And here, it’s always someone else’s fault. You know what? Trump is completely your President. It’s always someone else’s fault, isn’t it?

                  The modern conservative: the poster child for the petulant teenager the world over.

                  1. Let’s review..

                    Sarcastro: ” the administration is providing none of that information.”

                    Me: “The administration is providing all sorts of information.” (Provides link).

                    You: “The most basic facts are (sometimes, begrudgingly) released.”

                    You: An entire list, by state, by supplies, of items released. Is that “No information”? Even you can’t admit that.

                    But then, go ahead, move the goalposts some more.

                    1. Let’s really review:

                      A: The administration isn’t providing information, including the information regarding the seizures specifically.

                      Dumbass Person: DERP DERP DERP! Look, after weeks of complaints and Congressional pressure, they finally released the absolutely bare minimum they had to; which still wasn’t what we were discussing. ALSO…. OBAMA!!! DID I MENTION OBAMA!

                      B: That’s not what was being discussed.

                      Dumbass Person: DERP DERP DERP! Goalposts! Obama! Goalposts! MY PROGRAMMING IS GLITCHING BECAUSE I DON’T KNOW HOW TO RECONCILE KEEPING MY HEAD IN MY POSTERIOR WITH THE KNOWLEDGE THAT THERE ARE MASS TRUMPHOMES* BEING DUG!

                      *A hooverville is a shanty.
                      A trumphome is a grave.

                    2. Yeah, AL – you’re defense isn’t really going so well.

                      Waiting for Congressional pressure and only then releasing some information one time is not how you run this stuff. You know that. Stop being a shill.

                    3. OH, and bernard, as he does, dug in and noticed what loki and I did not – your response is to some other set of goal posts you’ve chosen.

                      So bad job twice over.

                2. These are distributions from the stockpile.

                  The report is not about the shipments which have been seized by Customs, which is what I was referring to.

      2. No. He should have enough made for all. It’s the Defense “Production” Act, not the redistribution act. We’re dealing, yet again, with R created conditions of artificial scarcity.

        1. Err… This isn’t artificial scarcity. This is actual scarcity.

    5. So, seizing medical equipment and redistributing it for political advantage IS OK, if you’re a Democratic governor?

      It’s only Presidents that can’t do this sort of thing?

      1. Oh fuck you, Brett. Show me evidence that Trump is redistributing based on need rather than politics, and Cuomo isn’t, and I’ll listen. And if Cuomo is doing that then fuck him too.

        Meanwhile just take your whataboutery and put it where the sun don’t shine. You have become a prime example of the Trump Can Never Fail mentality that permeates the right and may destroy the country.

        1. Brett identifies so closely with Trump he combines his own confirmation bias with self-serving bias (everything good Trump is responsible, everything bad is somebody else’s fault). I find it childish as well as toxic to the American experiment. Trump did something bad, it is okay to say it. You might still even vote for him. But for the love of everything holy and sacred, stop pretending he isn’t vindictive and untruthful in ways that undermine the American system of checks and balances.

        2. Here you go Bernard. Here’s the actual list.

          https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/SNS%20PPE%20REPORT.pdf

          Note where the vast majority of ventillators have gone? New York, New York City. They’ve gotten 4400 ventillators.

          The reddest state is Wyoming. They’ve gotten… Zero ventillators.

          Is that “need” or is it “politics”?

          1. As bernard noted above, this doesn’t have anything to do with the confiscated ventilators.

            Of course the reddest state wouldn’t get ventilators – Trump doesn’t need their vote.

    6. The article takes one example from CO and spins it into a conspiracy. It’s like reading a lefty version of an Alex Jones rant.

      Are you aware, that Cuomo in NY was going to seize ventilators from upstate NY for NYC, until it turns out that it wasn’t really necessary. Of course, political advantage had nothing to do with it of course. It was pure utilitarianism at work. *wink*

      How about how China had it’s companies across the globe sending medical supplies back by mail?

      1. So because Cuomo, in your unsupported opinion, is doing something similar, that makes it OK for Trump?

        Yeah. That makes no sense.

      2. How about how China uncoded the DNA sequence of the coronavirus and then released it into the public domain to facilitate a faster vaccine, rather than keep it under wraps and make money from the vaccine?

    7. That’s unsubstantiated, anti-administration narrative. Believe me, I researched that one for half a day and couldn’t find any substantiation of it. If you can provide a source I would appreciate it

      1. Denial does not become you.
        Colorado’s governor sent a letter begging for the return. Trump sent a subset back, citing a local Republican.

        Here’s a good summary:
        https://www.latimes.com/politics/story/2020-04-07/hospitals-washington-seize-coronavirus-supplies

        Unsubstantiated, eh? Researched for half a day?

        1. Isn’t this what you want Sarcastro?

          Don’t you want the federal government to set the priorities? To distribute it where the federal government thinks the supplies should go? To overrule the states?

          Isn’t this all exactly what you demanded when you demanded Trump use the DPA to prioritize?

          1. That’s not what they’re doing, AL. To set priorities, you make a public policy.

            To just go ahead with your own priorities without informing anyone, or only informing people when Congress demands it? That is just authoritarianism.

            You may not be able to tell the difference; I can.

      2. Here’s the Denver Post.

        https://www.denverpost.com/2020/04/09/coronavirus-editorial-trump-gardner-polis-supplies/

        Oh, wait.

        NONE OF THIS MATTERS. Because you don’t care.

        ….But Cuomo. But Obama. But Hillary.

        yada yada yada.

    8. President Trump has resisted getting involved as the nations quarter master, citing federalism and noting the states should manage their own supplies.
      Now the President is doing what Governors demanded. Taking control of supplies in short demand, and prioritizing their placement.
      If you cede the power to the federal govt, you have to accept the federal govt decisions. In short you got exactly what you wanted.

      1. Nothing like a last minute quartermaster, after people have already worked out what they could without him. The best is to not do a thing and then once expectations are set to do the thing and wonder why people are angry.

        Even better is when you keep what you’re doing secret except for the occasional tweet to your ally.

        Don’t pretend this is anything less than the crapshow that it is, iowan.

      2. Trump created the conditions of scarcity.

      3. No he’s not.

        After telling governors to get their own supplies, because the federal stockpiles are “ours!!” he seizes the shipments they order, shipments bound for hospitals and other places that need them.

        What they wanted him to do, many weeks ago, was order more production, not steal stuff to give out to his pals.

        Look, these defenses of Trump’s actions in the pandemic are psychotic. They come from an alternate universe, where Trump and Hannity are truthful men.

        1. No Bernard, that what the DPA is. It allows the federal government orders to supersede order to private companies, other national governments, and state governments.

          This is explicitly what you asked for. You demanded Trump use the DPA. And he has. Orders of PPE aren’t leaving the country now. The US Federal Government’s orders get priority. And some local orders are being requisitioned for federal redistribution. The US federal government’s orders get priority. So the Feds can determine where it can best be sent.

          This is exactly what you asked for.

        2. “weeks ago, was order more production”

          I’m genuinely curious about what you think the background is. Do you think there are U.S. manufacturers of, say, N95 masks that are running at part capacity at the moment, or in the past weeks? I’ve been operating under the assumption they have been running at full capacity, for some mix of it being the right thing to do and/or being evil capitalists who think they can sell all they make.

          If they are running at capacity, is the notion that any random manufacturer can set up N95 production in a few weeks and start cranking them out? Because I don’t think that’s really possible. There have been various ‘how are N95 masks made’ documentaries floating around, and I see a lot of custom built machinery to assemble them, plus the fabric that does the filtering is a specialty item that also requires custom machinery to manufacture.

          My little 3D printer is cranking out frames for face shields we donate to local nurses. It does one every 45 minutes. That’s just all I can do, no matter how many presidential orders I get.

    9. Stopped reading this comment after the first two words of the first sentence. You might as well start your comment with, “Hey, never mind what this post is about, look over there, everyone!”

  7. For those interested in the context of the statement Blackman criticizes, here it is:

    But I’ve rarely seen a development as disheartening as this one: a squirrelly, intellectually dishonest lecture in the form of an unsigned majority opinion, addressed to the four dissenting justices (Need I name them? Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), about how “this court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

    Let’s think about that. “Ordinarily not alter”?

    There are quite a few things that should not ordinarily be happening these days. People shouldn’t ordinarily be afraid of catching a deadly virus when exercising their right to vote. Half the poll-worker shifts in the city of Madison are not ordinarily vacant, abandoned by a work force composed mostly of people at high risk because of their age.

    Milwaukee voters are not ordinarily reduced to using only five polling places. Typically, 180 are open. (Some poll workers who did show up on Tuesday wore hazmat suits. Many voters, forced to stand in line for hours, wore masks.) And the number of requests for absentee ballots in Milwaukee doesn’t ordinarily grow by a factor of 10, leading to a huge backlog for processing and mailing.

    I wonder how Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh understand the word “ordinarily.” And I wonder why the opinion was issued per curiam — “by the court.” Did none of the five have the nerve to take ownership by signing his name?

    Apparently nothing but the last bit was worthy of attention.

    1. In the United States courts have limited jurisdiction and power. The fact that a proposal or law may be a bad idea in no way automatically gives any court – state or federal – the power or the jurisdiction to correct it.

      The power to deal with such practical consequences is left EXCLUSIVELY to the legislative and executive branches of the state and federal governments. Federal power over elections is also strictly limited.

      Apparently, some people, believe that the Constitution grants the judiciary the right to be the final arbiter of every dispute and issue that faces the country. I would imagine these people would be horrified if the Supreme Court this fall discovered a new intrinsic power in the Constitution allowing them to extend Donald Trump’s term for four years due to the pandemic. Or struck down every gun control law in the country because the pandemic makes it impossible for citizens to exercise their Second Amendment right to sell and purchase weapons.

      So, for those who question this ruling, again please provide a citation to a specific provision in the Constitution – or even a federal statute – that gives the federal judiciary the complete and exclusive ability to control every detail of a non-federal election?

      1. Thanks for a pompous and irrelevant comment.

        1. It certainly made up for in the purple-y and pompous prose what it lacked in relevancy.

    2. Apparently nothing but the last bit was worthy of attention.

      Correct. Greenhouse’s views about how courts should impose her vision of correct policy regardless of the law are long-established and no longer worthy of attention.

      But, since you insist, the possibility of catching a potentially-fatal disease when you go to the polls is, in fact, an ordinary risk, just like the chance of a traffic accident on the way to the polls, or many other hazards of ordinary life. How many people, would you like to guess, have gotten influenza at the polls in the last 20 years? And that’s before one considers precedents like the elections held during the Spanish Flu pandemic.

      It was stupid policy for the state legislature of Wisconsin to make no accommodations for COVID-19, but stupidity on their part does not actually empower the Federal courts to make policy for them.

    3. I can’t follow the meta-criticism. Blackman is wrong because he only addressed the thing in Linda Greenhouse’s column that is obviously wrong–and which she knows is obviously wrong, but is hoping her readers don’t understand. And that’s a problem. But what in Blackman’s response do you think is obviously wrong? And are you damned in your criticism of Blackman, for the same reason? (What do you disagree with, precisely?)

      Set aside the meta argument. The dissent doesn’t need Linda Greenhouse (of all people) preach the virtue of their position. But now is your chance. What do you think the Court got wrong? And what did you think the dissent got right?

      The “have the nerve” shit is pointless and intentionally misleading. Do you think she was right to say it or not?

      1. I did not claim Blackman was wrong, merely that his emphasis is misplaced. While all the Conspirators are generally partisan, it seems to me that Blackman goes out of his way to score trivial partisan points.

        I think the rest of Greenhouse’s column, the part I quote, raises an interesting question. If the courts “ordinarily” shouldn’t do something then there must be extraordinary cases where they should. I would be curious to know why, given the points raised by Greenhouse, the majority did not think the current situation sufficently extraordinary.

        The dissent says, “The Court’s suggestion that the current
        situation is not “substantially different” from “an ordinary
        election” boggles the mind. ”

        I agree.

      2. “The “have the nerve” shit is pointless and intentionally misleading. Do you think she was right to say it or not?”

        Blackman is technically correct; the very best type of correct. Admittedly, that’s a rare position for him to be in.

        So here is the real meta-criticism. The issue isn’t with the morons in the comments, it’s with the Adlers, and the Volokhs, and (ugh) the Blackmans. It is with the “useful idiots” who provide the intellectual cover for the morons in the comments, and so many others.

        It’s not a question of whether what the Supreme Court did was wrong now; instead, we can discuss whether Linda Greenhouse was (gasp) UNCIVIL to the majority. Oh no! Whether she, by stating a truism for rhetorical purposes (that they did not “sign” the per curiam opinion) somehow lowered the dignity of the court and civil discourse….

        So you can say that it’s pointless shit, and we can all ignore the fact that five members of the Court (the ones we all expect) can disregard what is going on in order to allow a contagion to more effectively spread for partisan reasons.

        Yeah, that sounds about right. We wouldn’t want to miss out on any technicalities, though, would we.

        1. And this is the same court that finds the current situation extraordinary enough to halt oral argument (how often has that happened?) because the Justices and lawyers would be endangered, yet won’t allow reasonable steps to protect WI voters.

    4. If you think this additional “context” makes Greenhouse’s nonsense less silly, bernard11, then respectfully, sir, we completely disagree. Her essay is silly through and through.

      But the last two sentences branch off sharply into a different sort of silliness — a very personal and insulting sort of silliness. And those two sentences can and should therefore be considered on their own, as a nasty ad hominem slapped onto the tail end of shoddy and ersatz legal analysis.

      1. Yes, we do disagree.

        I think she makes an excellent point. These are not ordinary times.

        Thanks for the “respectfully.”

  8. All Supreme Court opinions should be unsigned. No need to know who voted each way either.

    No concurrences either, one dissent.

    1. How often do you encounter someone who agrees with you?

    2. I usually agree with Brett, all things considered. How often do you find people that agree with your stage persona? Titania McGrath maybe and you are friends, eh?

      1. Wait – Are Brett and Bob the same guy ?!?
        Which one is Jekyll and which one Hyde?

  9. The Fake News Media, INC needs to make political hay out of anything and everything. And the truth is no hurdle to high for them.

  10. SOP doesn’t give the Left chances to undermine our institutions like these sorts of attacks do.

  11. Reading the decision, a few points are made pretty clear.

    1. The plaintiffs did not ask to delay the election. By extending the deadline to cast and send in absentee ballots a week (note, not just postmark, but cast) it effectively delayed the election a week.

    2. The court, unilaterally, decided to delay the election a week…but only for absentee ballots. Something that…one. again wasn’t asked for, two the legislator didn’t make a law on.

    3. I’m struggling to find ANY examples of ANY case where a US election was postponed by court order. Even during the US Civil War in 1864, the election went as scheduled. If there’s one you can find, do so.

  12. Ah … the bitterness … just cannot wait until Roe goes down.

    The wailing and gnashing of teeth!

  13. I’m pretty sure I’ve seen per-curiam dissents. Did a quick search and found this: https://www.scotusblog.com/2012/10/scholarship-highlight-the-supreme-courts-misuse-of-per-curiam-opinions/

  14. The opinion piece had a substantive (ish) component and then the last paragraph that was in essence an ad hominem attack on the integrity of the justices who were in the majority.

    Just b/c Mr. Blackman didn’t address the substantive elements of the argument doesn’t mean he agrees with them. I assume he merely wanted to address the ad hominem portion and explain that it was not cowardice or any other unflattering attribute that led to the per curiam decision being unsigned, but merely SOP.

    As to the use of language about “ordinarily” the courts shouldn’t interfere. We have to ask what we mean by “ordinary”. In the usual or ordinary run of events the courts should defer to the legislative scheme for setting up elections. In the unusual circumstance that something sudden comes up that the legislature cannot address and that might substantially affect the electorate’s ability to vote, a court MIGHT be justified in trying to craft a remedy.

    However, the WI legislature emphatically had an opportunity to address the issues of changing voting procedure and they declined to act. https://www.nbcnews.com/politics/2020-election/wisconsin-governor-calls-special-legislative-session-consider-delaying-election-deadline-n1176186 So this is an ordinary circumstance. There is no sudden event that the legislature had no time to address. Rather, the legislature purposefully refused/declined to change the procedure. Absent some strong evidence that this was done for an improper (racially motivated?) purpose, this affirmative decision by the WI legislature should ORDINARILY be respected by the courts.

    I disagree with the tack that the WI legislature took and wish they had granted some sort of grace period. And I hope that going forward states do try to make it easier to vote from home/remotely etc. Nor do I discount that there may have been some political strategic thinking going on in the legislatures decision to NOT grant some relief. But I certainly do NOT believe that the S.Ct. should override the expressed will of a state legislature.

  15. I have seen per curiam dissents. I recall seeing one with 4 dissents which I thought was doubly odd because my reading of the SCOTUS rules was that it takes the vote of six justices to issue one. If my reading is correct then one (or more) of the dissenting justices also voted in favor of the per curiam.

  16. Did none of the five have the nerve to take ownership by signing his name?

    Is Linda Greenhouse really this stupid? That’s astonishingly clueless, or spectacularly dishonest. Shame on her reportorial peers who consider themselves competent to report on SCOTUS matters if they don’t call her out on this load of manure.

    1. And who are you? Are you a lawyer? An anonymous kibitzer?

      1. My screenname is a link to my own blog, Pacific. Lawyer since 1980, and occasional commenter here since 2003. The link represents my “taking ownership” of my comments. For the five who joined the per curiam opinion, it was their oath of office, combined with their joinder in this specific opinion, by which they took ownership.

  17. From the page entitled “Opinions” on the SCOTUS’ website:

    The Court may also dispose of cases in per curiam opinions, which do not identify the author. These opinions frequently resolve cases summarily, often without oral argument, but they have been issued in important argued cases, such as Bush v. Gore, 531 U. S. 98, and the campaign finance case of Buckley v. Valeo, 424 U. S. 1.

Comments are closed.