The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court issued its final two decisions in argued cases for the October 2020 term. Both decisions produced 6-3 splits along ideological lines, as most observers expected.
First up was Brnovich v. Democratic National Committee concerning Section 2 of the Voting Rights Act. Justice Alito wrote for the Court's conservatives, concluding that Arizona's laws prohibiting ballot harvesting and limiting out-of-precinct voting did not violate the VRA and that these provisions were not enacted with a discriminatory purpose. The implication of this decision is that Section 2 claims against state voting laws must be based upon disparate treatment claims, and the evidence of disparate impact on minority groups is insufficient. Justice Gorsuch wrote a brief concurrence joined by Justice Thomas. Justice Kagan dissented on behalf of the Court's liberals.
The final opinion of the term came in Americans for Prosperity v. Bonta. Chief Justice Roberts wrote for the Court, concluding that California's donor disclosure requirement is facially invalid because it burdens donors' First Amendment rights and is not narrowly tailored to an important government interest. This case also produced a 6-3 split along ideological lines, but the majority splintered on some issues. Here's the full breakdown:
ROBERTS, C. J., delivered the opinion of the Court, except as to Part II– B–1. KAVANAUGH and BARRETT, JJ., joined that opinion in full, ALITO and GORSUCH, JJ., joined except as to Part II–B–1, and THOMAS, J., joined except as to Parts II–B–1 and III–B. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. ALITO, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which BREYER and KAGAN, JJ., joined.
This means that Section II-B-1 of the opinion, which held that "all compelled disclosure requirements are reviewed under exacting scrutiny" did not command a majority. Justice Thomas would have gone farther and applied strict scrutiny. Justice Alito (joined by Gorsuch) did not feel the need to apply a categorical rule to all donor disclosure requirements in this case.
Overall, this term produced more 6-3 splits than 5-4 splits, but a surprising number of alignments. There were six different 6-3 alignments and five different 5-4 alignments, and of those cases in which replacing Justice Ginsburg with Justice Barrett made the difference, the marginal votes came from Justice Thomas more often than from the Chief. (That is, the five justice majority with Justice Ginsburg would have included the Court's four liberals and Thomas.)
Stay tuned for additional discussion of these decisions and the Supreme Court's term in subsequent posts.