The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today the Supreme Court decided another COVID-related case. In Little v. Reclaim Idaho, the state sought a stay of a District Court order. That ruling required the state to collect digital signatures for ballot initiatives. The Ninth Circuit declined to stay the District Court's judgment. The Governor of Idaho sought a stay from the Supreme Court.
The Supreme Court granted the application. Chief Justice Roberts wrote a concurring opinion, which was joined by Justices Alito, Gorsuch, and Kavanaugh. You'll notice there is one name missing from that quartet. Where is Justice Thomas? He did not signal his concurrence with the majority. Or his dissent.
Contrast this case with RNC v. DNC from Wisconsin. In that case, there were four votes in dissent. And the majority issued a per curiam decision, which had to have five votes. By process of elimination, we know that Roberts, Thomas, Alito, Gorsuch, and Kavanaugh joined that per curiam opinion. But in the Idaho case, Justice Thomas did not signal his concurrence. If he had joined the majority, I think we would have just seen a per curiam opinion, rather than a concurrence from the Chief Justice.
What is going on here? Justice Thomas has a soft spot for ballot initiatives. He forcefully dissented in Doe v. Reed (2010). He would have reviewed restrictions on ballot initiatives with strict scrutiny:
Just as "[c]onfidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy," Purcell v. Gonzalez , 549 U. S. 1, 4 (2006) (per curiam), so too is citizen participation in those processes, which necessarily entails political speech and association under the First Amendment. In my view, compelled disclosure of signed referendum and initiative petitions 1 under the Washington Public Records Act (PRA), Wash. Rev. Code §42.56.001, et seq. (2008), severely burdens those rights and chills citizen participation in the referendum process. Given those burdens, I would hold that Washington's decision to subject all referendum petitions to public disclosure is unconstitutional because there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process. I respectfully dissent.
In Reclaim Idaho, the majority seemed to cast doubt on applying strict scrutiny to review ballot initiatives. I don't think Justice Thomas could have joined that per curiam opinion. So instead the Chief styled it as a concurrence for four members. And there is no requirement for a Justice to note his dissent from a per curiam order. (See my SCOTUSBlog post.) I think Justice Thomas quietly dissented.
If Justice Thomas quietly dissented, then Justice Breyer and/or Kagan would have had to quietly concur in the judgment to form a majority! Did Justice Breyer give a courtesy fifth vote? Or did Justice Breyer agree that the District Court's order placed too great a burden on the clerk. This sentence from Roberts's concurrence seems like something that would sway Breyer:
In addition to preparing for elections with a record number of absentee ballot re-quests, the county clerks must now also learn, under extraordinary time pressures, how to verify digital signatures through an entirely new system mandated by the District Court. The District Court did not accord sufficient weight to the State's discretionary judgments about how to prioritize limited state resources across the election system as a whole.
We know Justice Breyer had some difficulties with technology. His cell phone went off in court and he failed to properly use the mute button. Justice Breyer may have thought a stay was warranted, but didn't concur in the Chief's opinion.
If so, how did Kagan vote? Who knows? But she didn't sign the dissent, as that would have made it easier to figure out that Breyer was all alone.
Once again, a fun case of counting to five in a per curiam order.