The Volokh Conspiracy

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

Volokh Conspiracy

A Quite Unusual 5-4 Split on the Supreme Court

Three opinions, no blockbusters, but an odd (and unprecedented?) 5-4 split - and interesting order on Congressional subpoenas.


The Supreme Court issued three opinions in argued cases today, punting (correctly) in one of the biggest cases of the term.

The most interesting decision came in Georgia v., in which the Court rejected the state of Georgia's attempt to assert copyright in the Official Code of Georgia Annotated. I'll leave to others whether the opinion properly concluded that the Georgia Code Revision Commission is, in fact, an arm of the state legislature, and whether the majority correctly applied the relevant conceptions of authorship to this dispute. What I find most interesting is the line-up in this 5-4 decision.

Chief Justice Roberts wrote the majority, joined by the Court's four most junior justices: Sotomayor, Kagan, Gorsuch and Kavanaugh. Justice Thomas dissented, joined by Justice Alito and (in part) Justice Breyer. Justice Ginsburg dissented separately, also joined by Breyer. This is a 5-4 split one does not see every day. Indeed, I cannot think of another case dividing the Court in this way (even if one were to substitute Kennedy for Kavanaugh and/or Scalia for Gorsuch). Just another reminder that not all 5-4 cases can be understood in political or ideological terms.

The Court resolved an important Affordable Care Act case in Maine Community Health Options v. United States. Writing for eight justices, Justice Sotomayor held that health insurers were entitled to risk corridor payments under the ACA, despite Congress's failure to appropriate funds to fulfill the legal obligation. Among other things, this opinion stresses the norm against recognizing implied repeals of legislation. Justice Alito wrote the lone dissent.

Many were anticipating a big Second Amendment ruling in New York State Rifle & Pistol Association v. New York, but it was not to be. The New York legislature revised the laws in question while the litigation was pending, rendering moot the precise question before the Court. Accordingly, in a brief Per Curiam opinion the Court sent the case back down to the lower court for consideration of the relevant Second Amendment claims against the rules currently in force. Justice Kavanaugh wrote a brief concurrence. Justice Alito, joined by Justices Gorsuch and Thomas, dissented.

For what it's worth, I think the Court got this one right: The case as argued is moot. At the same time, the dissenters are correct that additional guidance to lower courts (and states) on the permissibility of gun restrictions is long overdue. In this regard, I think Justice Kavanaugh's concurrence got things right: "petitioners' claim for injunctive relief against New York City's old rule is moot and that petitioners' new claims should be addressed as appropriate in the first instance by the Court of Appeals and the District Court on remand." In addition, there is ample cause for concern that "some federal and state courts may not be properly applying Heller and McDonald." Accordingly, Kavanaugh wrote: "The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court."

The Court also released orders today. While it did not grant any new cases for argument, it did something interesting in Trump v. Mazars and Trump v. Deutsche Bank:

The parties and the Solicitor General are directed to file supplemental letter briefs addressing whether the political question doctrine or related justiciability principles bear on the Court's adjudication of these cases. The briefs, not to exceed 15 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, May 8, 2020.

What does this mean? One possibility is that one or more justices see the political question doctrine as a potentially attractive way to resolve the cases without having to decide on the precise limits of legislative authority to demand the disclosure of documents. Note that while this resolution might look like a "punt," it would almost certainly be a loss for Donald Trump. If the Court were to conclude that these two cases present a nonjusticiable political question, this would mean Trump's efforts to quash the congressional subpoenas necessarily fails, and it's hard to imagine private firms refusing to comply in such circumstances. On the other hand, such a resolution could strengthen the Trump Administration's hand in cases demanding documents from the White House.

While this is one possibility, it's important not to read too much into this supplemental briefing request. It's equally possible that some justices want to make sure they've covered all of their bases, and have thought about the implications of any ruling here for other doctrines (and, potentially, for other cases in the pipeline). Just because the Court asked for supplemental briefing on this question does not mean this issue will be central in the resulting opinion(s).  As always, time will tell.