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.

Comments

[SRG2]

Four cases came out today.
https://www.supremecourt.gov/opinions/slipopinion/23

Gorsuch and Thomas dissented on three, Nobody else dissented on more than one.

Possibly unimaginative defending in Diaz - expert witness for the prosecution in a drug importing case is allowed to say that most people carrying such a large amount know that they're carrying. You can turn the argument round to note that unless "most" is a very high percentage, the defendant cannot be guilty beyond reasonable doubt.

[JoeFromtheBronx]

Diaz split the libs with Jackson concurring.

Gorsuch ended his dissent this way:

"Persuaded that today’s decision is mistaken, but hopeful that it will ultimately prove immaterial in practice, I respectfully dissent."

[JoeFromtheBronx]

The Moore tax case came down today.

Alito got some flack for not recusing. He joined Barrett's concurrence, which upheld the tax on narrower grounds.

https://www.lawdork.com/p/alito-moore-wsj-questions

[loki13]

Barrett and Alito are leaving the door open.

But even so, 5 > 4. For now.

[TheAmazingEmu]

Gonzalez v. Travino looks to someone who wasn't following the procedural history as a per curiam summary reversal. Even with oral argument, the per curiam nature seems to be one to signal that the Fifth Circuit went too far and the case was being reversed as mere error correcting without adding to the law. Whether that's the case is a matter of subjective judgment (in my opinion, plenty of per curiam summary decisions do add new law, often substantially), but I suspect that's why it's unsigned.

[SRG2]

On my reading of Alito’s concurrence, he’s saying to the 5th Circuit, “and now this is how you can go about finding against Gonzalez”.

[loki13]

I'm guessing that the majority (Alito?) ended up being unpalatable, and that they decided to issue a narrow per curiam instead.

[MaddogEngineer]

While reading Alito's concurrence, I too was wondering whether it had started out as the opinion of the court but he lost his majority. Not specifically because of his reasoning, but when every justice was forced to sign onto a single reason, they realized they all had different ones.

Could totally believe this was like herding cats, and Alito never had a chance. Especially with Kavanaugh disputing this is an Nieves exception situation at all.

[TheAmazingEmu]

His concurring opinion reads to me as a way to narrow the majority. He's deliberately minimizing what they wrote to suggest that this is a fluke case while the majority seems to suggest that the exception is broad enough to take into account that it's often impossible to get the type of evidence the Fifth Circuit was demanding. So I don't read it as originally being the majority since I don't think his opinion can exist without the majority having been written first.

[MaddogEngineer]

Maybe what I should have said is that Alito was assigned the opinion, started a draft and after initial circulation, nobody could agree on anything beyond what was in the per curiam (which got pulled out). I suspect his concurrence was the completion of his draft framework, but like I said above, everybody had a different rationale once they had to commit to something. Naively optimistic of Alito. Obviously he did a pretty extensive rewrite not having a true majority. Being the only opinion to fully flush out the issue makes me think he was assigned it originally and had already put in the work.

[Noscitur a sociis]

If Roberts and Kagan are on the same side, I find that's usually the right one, but I'm not sure it worked in the three (if we count this one) today. I haven't looked deeply enough into the precedents and could change my mind, but the dissent in Moore seemed persuasive to me. Chiaverini seems totally unworkable to me. And this case (Gonzalez) seems to have more or less the right disposition but still doesn't do much to resolve the fundamental tension of how to handle these kinds of claims.

[TheAmazingEmu]

I like the rule of thumb proposed here before:
* The side with Roberts and Kagan on is the correct side
* If Roberts and Kagan are not on the same side, it's whatever side Alito is not on
* These rules do not apply to unanimous opinions.

[MaddogEngineer]

Works equally well if you replace "Alito" with "Sotomayor". Maybe even better.

[F.D. Wolf]

Given the recent rash of arrests of political opponents on dubious charges, one wonders if this decision will be relevant in retaliation claims in the near future.

[David Nieporent]

What rash of arrests of political opponents?

[Zak Meh]

We found a Bob Menendez supporter!

[F.D. Wolf]

That's adorable. I am reminded of a 2016 press conference Raul Castro had with international reporters. When asked if he would be releasing political prisoners, Castro responded, "What political prisoners?"

If you don't know to what I am referring, I would not dream of shattering your blissful oblivion.

[ReaderY]

I found it interesting that Thomas’ dissent called on respect for the sanctity of corporate personhood without taking into account his strong views that foreign corporations, as foreigners, aren’t constitutional persons in the sense of having rights.

Congress has just as much right, so far as the Constitution is concerned, to treat a foreign corporation as nothing more than an alter ego of its American shareholders as it does to consider a fetus as nothing more than part of its mother.

What makes foreign corporations more constitutionally sacred than foreign humans?

[ReaderY]

Wrong post. This was the Moore case.

[ReaderY]

I agree per curiam decisions shouldn’t be done except in unanimous or nearly unanimous cases.

However, I think this case qualifies as nearly unanimous. Only Justice Thomas dissented. While it’s unusual to have multiple concurrences like this, they all joined the per curiam opinion in full and did side things, e.g. opining on issues the court didn’t reach, that don’t alter the meaning of the court’s actual opinion.