The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I will have plenty to say about Bostock v. Clayton County. Here, I will speculate about a summary decision from Monday's order list: Andrus v. Texas.
The Supreme Court generally requires four votes to grant certiorari. But with five votes, the Court can issue a summary unsigned opinion. The so-called GVR will grant the petition for a writ of certiorari, immediately vacate the lower-court decision, and remand with instructions. The Court will usually GVR cases that are fairly non-controversial. After all, if four Justices are willing to grant the case, that means there are four Justices who think deliberations would be improved by oral argument.
Andrus does not neatly fit that mold. The case involves a Strickland claim of ineffective assistance of counsel. The majority wrote a per curiam decision that stretched 19 pages. And Justice Alito, joined by Justices Thomas and Gorusch, wrote a seven-page dissent. There was a lot of disagreement between the majority and the dissent on the facts of the case. The majority included four footnotes that responded to the dissent.
There were at most six Justices in the majority: Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh. We cannot be certain that all six agreed with the per curiam decision. Justices do not need to note their dissent from unsigned GVRs.
I'll presume the Court split 6-3. If the Court was so fragmented, why not simply grant certiorari and hear the case? Justice Alito hinted at this strange disposition. His dissent begins, "The Court clears this case off the docket, but it does so on a ground that is hard to take seriously."
What happened here? Had Chief Justice Roberts and Justices Kavanaugh agreed with the dissenters, they could have formed a 5-member bloc, and turned the majority per curiam decision into a dissent.
My theory? Initially, Justice Sotomayor wrote a dissent from denial of certiorari, as she often does. The opinion begins with a heart-wrenching rendition of the facts, that is classic Sotomayor. This case was floating around forever. Jon Elwood offered this count:
rescheduled before the November 1, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, January 10, January 17, January 24, February 21, February 28, March 6, March 20, March 27, April 3, April 17, April 24, May 1, May 15, May 21, May 28 and June 4 conferences
Over the course of eight months, Sotomayor was able to persuade Justices Ginsburg, Breyer, and Kagan to grant certiorari. Rather than grant cert, and potentially set a broad Strickland precedent, Roberts and/or Kavanaugh urged a narrow GVR. No real precedent is set, and this messy case–to use Alito's phrasing–is "cleare[d] … of the docket."