The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Monday, the Supreme Court decided Republican Party of Pennsylvania v. Degraffenreid (formerly Boockvar) and Corman v. Pennsylvania Democratic Party. Both of these cases raised the same issue: can entities other than the state legislature (such as the state courts) modify the rules governing federal elections. The Court issued a one paragraph per curiam opinion that resolved both petitions.
The motions of Donald J. Trump for President, Inc. for leave to intervene as petitioner are dismissed as moot. The motions of Thomas J. Randolph, et al. for leave to intervene as respondents are dismissed as moot. The motion of Hon- est Elections Project for leave to file a brief as amicus curiae in No. 20–542 is granted. The motion of White House Watch Fund, et al. for leave to file a brief as amici curiae in No. 20–574 is granted. The petitions for writs of certiorari are denied.
Justice Thomas dissented from the denial of certiorari. Justice Alito wrote a separate dissent from denial of certiorari, which was joined by Justice Gorsuch.
Counting the votes here is tricky.
First, let's count the votes in the motion to intervene. We know a majority of the Court voted to deny Donald Trump's motion to intervene because that motion was moot. At this point, Trump's presidential campaign is over. There is no interest on which he could intervene. The denial here is unsurprising. But a majority of the Court did not state that the Republican Party of Pennsylvania's petition was moot. The Court does not explain why cert was denied. The motion to intervene could be moot, but the underlying petition could not be moot, for the reasons identified in the dissent. (For example, this issue is capable of repetition, yet evades review). Furthermore, we do not know if any Justices dissented from the denial of the motion to intervene. Justices are not required to indicate dissents from these sorts of unsigned, summary orders. For all we know, the three dissenters, plus one more, contended that Trump's intervention was not moot, but declined to note their dissent. At a minimum, five Justices denied the motion to intervene.
Second, let's count the votes with respect to the cert denial. Under the so-called Rule of 4, four Justices must vote to grant review in a case. In this case, we know that three Justices–Thomas, Alito, and Gorsuch–would have granted cert. That split tell us that six Justices voted to deny cert: Roberts, Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett. But we do not know why any of those six members voted to deny cert. It's possible that one or two of those Justices agreed with arguments put forth in the dissents, but chose to deny cert for other reasons. In short, we know a majority of the Court thought Trump's motions to intervene were moot, but we do not know if a majority of the Court found the petitions were moot.
Third, why was Justice Kavanaugh not a fourth vote to grant certiorari? In October, he was a proponent of the independent state legislature doctrine. But now, he was MIA. Both dissents referenced the fact that four Justices voted to grant a stay on this issue in October. The Wall Street Journal questioned, "where did Justice Brett Kavanaugh wander off to, since he was the fourth vote in October?" What happened?
I have no reason to think Justice Kavanaugh changed his mind on the merits. Why, then, did he not vote to grant cert? Perhaps Justice Kavanaugh determined that the petitions were now moot. If so, he could have issued a statement respecting the denial of certiorari, similar to his concurrence in NYS Rifle & Pistol: this controversy is moot, but the Court should address this important issue in another case. But he didn't write separately.
Or, perhaps, Justice Kavanaugh thought it was not prudential to decide this issue now. The events of January 6 may have given him pause. But if not now, when? This issue is truly a ticking time bomb. In 2024, the Republican Presidential candidate will raise the issue, forcing the nine (or more) members of the Court to resolve this important question. Chief Justice Roberts is content to keep kicking the can down the road, knowing that each subsequent kick allows the issue to fester. Does Justice Kavanaugh agree?
Or, perhaps, Justice Kavanaugh was affected by criticism of his Wisconsin dissent. By some accounts, he mischaracterized Professor Richard Pildes's article. And I think Justice Kagan's dissent torched him on the "flipping" votes argument. And this argument looks even worse after the never-ending nonsense of Dominion machines "flipping" votes. Justice Kavanaugh probably did not want to line up with the pillow guy. For now, Justice Kavanaugh was silent.
Fourth, we have no idea where Justice Barrett is on this question. In October, Barrett recused from the Pennsylvania and North Carolina absentee ballot cases. She had recently joined the Court, and was not yet up to speed. Now, we still don't know where she is. A denial of cert does not in any way suggest her substantive views on the question presented. We will find out in 2024, or even sooner.
Update: Linda Greenhouse comments on Justice Kavanaugh and Barrett's silence in these cases:
Justice Kavanaugh withheld his vote on Monday, without explanation. Maybe he decided this was a propitious time to offer some cover for Chief Justice John Roberts, who has voted in nearly all the election cases this fall with the three remaining liberal justices.
Justice Barrett was also silent. During her confirmation hearing, Senate Democrats had pressed her to promise recusal from any election cases, given that President Donald Trump had said he needed a prompt replacement for Justice Ruth Bader Ginsburg so that he would have a majority of justices voting his way in any election disputes. Justice Barrett did not recuse herself from the Pennsylvania case. Perhaps her decision not to provide the fourth vote her dissenting colleagues needed was a kind of de facto recusal, in recognition that the optics of voting to hear a last-ditch Trump appeal would be awkward, to say the least.