The Volokh Conspiracy

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Today's Unusual SCOTUS Lineup(s)

Masterpiece Cakeshop is not the only decision to surprise this term.


This morning the Supreme Court issued opinions in five argued cases.

Chavez-Mesa v. United States, concerning whether a judge provided an adequate explanation for a sentence reduction, split the Court 5-3. What's interesting about the case is the line-up it produced: Justice Breyer wrote for the Court, joined by the Chief Justice and Justices Thomas, Ginsburg, and Alito. Justice Kennedy dissented, joined by Justices Sotomayor and Kagan. Justice Gorsuch was recused. Not only did this case not divide the Court along liberal-conservative lines, it did not divide the Court along formalist-pragmatist lines either. This decision marks the seventeenth different line-up in an argued case thus far this term.

We saw another interesting line-up today in Gill v. Whitford, the big partisan gerrymandering case out of Wisconsin. Here, the Court was unanimous in concluding that the plaintiffs had failed to demonstrate standing. While there's nothing unusual about unanimous cases generally in the Supreme Court, it was quite unexpected in this particular case, which most observers predicted would divide the Court along ideological lines, 5-4. (See also Masterpiece Cakeshop for a decision that produced more unanimity than was expected.)

In Gill, the Chief Justice wrote the opinion for the Court finding no standing. This conclusion was unanimous. The Court also held that the plaintiffs could have another shot at trying to demonstrate standing on remand. The vote on this holding was 7-2. Justices Thomas and Gorsuch would have simply dismissed the case. Also, Justice Kagan wrote a separate opinion (joined by the Court's other liberal justices) expressing support for the argument that the proper plaintiffs would have standing to challenge partisan gerrymandering and that such a claim would be justiciable.

Also today, the Court decided another partisan gerrymandering case—Benisek v. Lamone—in which it was also able to avoid the underlying substance. In a brief per curiam opinion the Court concluded that the plaintiffs failed to demonstrate that the district court abused its discretion in denying a preliminary injunction.

There will be more Supreme Court opinions on Thursday.