New on SCOTUSBlog: "Invisible majorities: Counting to nine votes in per curiam cases"

I try to make sense of the votes in the Faithless Electors Cases and the Creek Nation Cases


SCOTUSBlog published my new essay, titled Invisible majorities: Counting to nine votes in per curiam cases. Here is the introduction:

When the Supreme Court issues a signed opinion, each of the nine justices will indicate their position: affirm, reverse or recuse. But not all opinions are signed. The court sometimes issues unsigned per curiam decisions – so named after the Latin phrase meaning "by the court." In such cases, the justices' positions are not always so clear. All we know for sure is that at least five members – a majority of the court – agreed with the unsigned order. Individual justices can, and do, write separately to express their concurrence with, or dissent from, a per curiam ruling. But the failure to write separately does not necessarily indicate assent. As a result, it is often impossible in these cases to figure out which justices were in the majority, and which were in the dissent.

This past term, the court issued per curiam rulings in two pairs of "companion" cases: the "faithless elector" cases and the Creek Nation cases. In these decisions, it was difficult to count to nine.

I still remain perplexed by the votes in the Creek Nation cases.

The voting lineup in one of the Creek Nation companion cases is even more ambiguous. On July 9, the court decided McGirt v. Oklahoma and Sharp v. Murphy. Both cases presented the same question: whether portions of eastern Oklahoma remained land reserved for the Creek Nation. McGirt split 5-4. Gorsuch wrote the majority opinion. He found that the territory retains its status as a Native American reservation. He was joined by Ginsburg, Breyer, Sotomayor and Kagan. Roberts dissented, joined by Thomas, Alito and Kavanaugh. The dissenters argued that Congress had disestablished the reservation.

Murphy was decided with a one-sentence per curiam opinion: "The judgment of the United States Court of Appeals for the Tenth Circuit is affirmed for the reasons stated in McGirt v. Oklahoma." But Gorsuch was recused in Murphy – and as a result, only four members of the McGirt majority remained. There had to be at least five justices to form a majority in Murphy. (If the court had split 4-4, and there had been no majority, the per curiam ruling would have stated that the 10th Circuit is affirmed "by an equally divided Court.") We can safely assume that the remaining four members of the McGirt majority remained: Ginsburg, Breyer, Sotomayor and Kagan. But who was the fifth vote? Thomas and Alito noted their dissents from the Murphy per curiam opinion, presumably for the same reasons they dissented in McGirt. So they're out.

That leaves Roberts and Kavanaugh. One or both of them must have voted with the majority – even though they vigorously dissented in McGirt. Why? Perhaps they deemed McGirt binding precedent, which must be followed. Or one of them joined the per curiam decision as a courtesy "fifth" vote to create a majority. It is impossible to know for sure. But at least one member of the McGirt dissent must have put aside their disagreement to join the Murphy majority.

I appreciate the chance to write on these nerdy issues.

NEXT: "There Are Good Reasons Not to Disparage Your Opponent, Especially in Court Filings"

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  1. It seems like the kind of thing Roberts would do, to defer to precedent, once the precedent exists, even if he dissented from the original precedent. It’s just this is the unusual case where that precedent wasn’t set until ‘just now.’

    1. It could also have been both of them. Look, what good would deadlocking the Court do in that case? McGirt is still going to be the precedent. So all you would be doing is screwing up the result of one case, without doing anything to affect the legal rule.

      I think a lot of judges, both liberal and conservative, would see that as a silly exercise.

      1. “what good would deadlocking the Court do in that case? ”

        It would have affirmed the lower court and kept a guy who did this:

        “A passerby found Mr. Jacobs in the ditch with his face bloodied and slashes across his chest and stomach. Id. His genitals had been cut off and his throat slit. Id. According to a state criminalist, Mr. Jacobs had been dragged off the road after his genitals were severed. Id. His neck and chest had been cut on the side of the road, where he bled to death over the course of four to twelve minutes, though it may have taken longer. ” Murphy v. Royal, 866 F. 3d 1164 – Court of Appeals, 10th Circuit 2017

        on death row where he belongs.

        That would have been very good.

        1. Well, I guess I mis-read the lower court case.

          The Supreme Court in both cases should have made it prospective only so this monster and McGirt [who is even worse] could get what they deserve.

          1. You can’t make jurisdictional issues prospective. You never could, really (the original, narrowest conception of habeas was that you could get out if the original court lacked jurisdiction to try you), but especially not after Griffith v. Kentucky.

  2. Say it with me: PERSON, WOMAN, MAN, CAMERA, TV

  3. Its Roberts and his trusty D20 dungeons and dragons dice he consults when he needs to make up his mind.

    1. And here I thought he used a magic 8 ball.

  4. For Murphy the underlying case at the 10th Circuit also found in favor of the tribe having reservation status. So a 4-4 tie affirming the judgment below would have resulted in the same outcome. Since McGirt set the precedent, holding onto a 4-4 tie would have been futile.

  5. It was probably Roberts, who felt stare decisis bound him to agree with a decision that had been handed down five minutes ago.

  6. Probably Roberts, possibly both. Given the binding precedent that now exists, the logical thing to do would either be to follow the new precedent despite the prior dissent or to at least remand it to the lower court to consider the new precedent if any other way is unpalatable. But creating an inconsistency in the application of law merely because a Judge was recused in one case but not the other is generally disfavored by Supreme Court Justices whose main job is to iron out these inconsistencies.

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