The Volokh Conspiracy

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Counting The Votes In An Unusual Per Curiam Opinion in Gonzalez v. Trevino

We know the identity of four members of the majority, but who else joined?


Today the Supreme Court decided Gonzalez v. Trevino. The case was argued in March. One would expect that the Court would issue a regular signed opinion that notes the authorship of the majority opinion. But the Court did something different. It issued a five page per curiam opinion, reversing the Fifth Circuit. The upshot of a PC opinion is that we do not know for sure who joined it.  Justice Alito wrote a sixteen-page concurrence, Justice Kavanaugh wrote a two-page concurrence, and Justice Jackson wrote a two-page concurrence joined by Justice Sotomayor. For sure, Alito, Kavanaugh, Jackson, and Sotomayor joined the majority. But who was the fifth vote? It was not Justice Thomas, since he dissented.

We do not know how Chief Justice Roberts and Justices Kagan, Gorsuch, and Barrett voted.

Why is this a per curiam opinion? It is possible that Justice Alito was assigned the majority opinion, but lost it, and the Chief came in to salvage the majority with a narrow per curiam. At present, Alito does not have any assignments from the March sitting.

Another possibility: at least one of those four did not want to signal their joining of the majority, but also did not want to join Justice Thomas's dissent. My guess is on Justice Gorsuch, who tends to be very skeptical of law enforcement matters, but one cannot be sure of these things. This case fractured the Fifth Circuit in an usual way:

In the en banc poll, six judges voted in favor of rehearing (Smith, Higginson, Ho, Duncan, Oldham and Douglas), and ten voted against rehearing (Richman, Jones, Stewart, Elrod, Southwick, Haynes, Graves, Willett, Engelhardt and Wilson).

Judge Ho wrote a dissent from denial of rehearing en banc. I'm sure Judges Ho, Duncan, and Oldham will be feted with praise.

On the whole, today was a very slow day. There is an opinion day scheduled for tomorrow, Friday. Next week we will probably have 2 or 3 decision days. That is only a few slots to hand down about twenty opinions! It will be busy.

I will not be by my computer tomorrow morning during hand-down time, so any updates will come later.