The Volokh Conspiracy

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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

|The Volokh Conspiracy |


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.