Invisible majorities: Counting to nine votes in per curiam cases

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the co-author of “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.”

When the Supreme Court issues a signed opinion, each of the nine justices will indicate their position: affirm, reverse or recuse. But not all opinions are signed. The court sometimes issues unsigned per curiam decisions – so named after the Latin phrase meaning “by the court.” In such cases, the justices’ positions are not always so clear. All we know for sure is that at least five members – a majority of the court – agreed with the unsigned order. Individual justices can, and do, write separately to express their concurrence with, or dissent from, a per curiam ruling. But the failure to write separately does not necessarily indicate assent. As a result, it is often impossible in these cases to figure out which justices were in the majority, and which were in the dissent.

This past term, the court issued per curiam rulings in two pairs of “companion” cases: the “faithless elector” cases and the Creek Nation cases. In these decisions, it was difficult to count to nine.

In May, the court heard oral arguments on so-called “faithless electors.” These members of the Electoral College refused to vote for the candidate who won the majority of their state’s popular vote in the 2016 presidential election. Both Washington and Colorado appointed electors who proved to be faithless, leading to two cases that ended up before the justices. Chiafalo v. Washington arose from a criminal prosecution; the state imposed a $1,000 fine against three electors who voted for former Secretary of State Colin Powell. Colorado Department of State v. Baca arose from a civil suit; three electors sued the state for not counting their votes for alternative candidates. (Justice Sonia Sotomayor recused herself from the Colorado case due to her friendship with Polly Baca, one of the would-be faithless electors.) The two cases presented distinct issues: Washington’s power to punish an elector and Colorado’s power to refuse to count an elector’s vote.

On July 6, the Supreme Court decided both cases. In Chiafalo, Justice Elena Kagan wrote a majority opinion for eight justices. The court held that Article II of the Constitution empowers Washington to punish faithless electors. Justice Clarence Thomas concurred in the judgment but did not join the majority’s reasoning. In Part I of his opinion, Thomas concluded that Article II does not “speak[] directly to a State’s power over elector voting.” In Part II, he argued that the states instead retain this power under the 10th Amendment. Justice Neil Gorsuch joined Part II of Thomas’ concurrence, but not Part I. Presumably, Gorsuch believes that the states have the power under both Article II and the 10th Amendment. Ultimately, this wrinkle made no difference in the outcome of Chiafalo. All nine justices ruled for Washington.

In Baca, the court also ruled in favor of the state, but the ruling in this companion case was not signed. Instead, the court issued a one-sentence per curiam decision: “The judgment of the United States Court of Appeals for the Tenth Circuit is reversed for the reasons stated in Chiafalo v. Washington.” The court noted that Sotomayor “took no part in the decision of this case” and that Thomas “concur[red] in the judgment for the reasons stated in his separate opinion in Chiafalo v. Washington.” Again, Thomas’ reasoning was that the 10th Amendment, not Article II, recognizes states’ power over faithless electors. Gorsuch agreed with part of that conclusion in Chiafalo. But in Baca, Gorsuch did not note his agreement with Thomas’ 10th Amendment reasoning. He thus left unclear his precise views on the issue outside the specific context of Chiafalo.

How can we explain Gorsuch’s subtle shift between Chiafalo and Baca? Perhaps he felt that, once Chiafalo was decided, he was then bound by its reasoning. As a result, he could have joined Baca in full without signaling that the same result could be reached through Thomas’ 10th Amendment argument. But it isn’t clear that Gorsuch agreed with the Baca per curiam opinion at all. During oral argument, he expressed some misgivings about whether the Baca lawsuit, which was brought under 42 U.S.C. § 1983, was even proper to begin with. It is even possible that Justice Stephen Breyer also disagreed with the majority; he expressed similar concerns during oral argument. But with a per curiam decision, there is no requirement for justices to signal their concurrence or dissent.

This dynamic is fairly common with emergency stay applications. In 2014, Justice Ruth Bader Ginsburg explained, “when a stay [of execution] is denied” without recorded dissent, “it doesn’t mean we are in fact unanimous.” When the majority opinion is per curiam, the only way to count to nine is if four justices note their dissents. Simple arithmetic tells us that the other five justices must be in the majority. Consider the recent example of South Bay United Pentecostal Church v. Newsom. A church sought emergency injunctive relief from a California executive order that limited public gatherings in order to combat the spread of COVID-19. The court, per curiam, denied the church’s application. Chief Justice John Roberts concurred in the denial of the application. There were four recorded dissenters: Thomas, Gorsuch and Justices Samuel Alito and Brett Kavanaugh would have granted the application. Thus, by process of elimination, we can conclude that Ginsburg, Breyer, Sotomayor and Justice Elena Kagan joined with Roberts in denying the church’s request.

But short of a 5-4 split in which all four dissenters note their dissent, it is impossible to know for certain how all of the justices voted in a per curiam opinion. Earlier this month, the court decided Raysor v. DeSantis. In this case, the court declined to lift a lower court’s stay related to the voting rights of Florida residents with felony convictions. The court’s opinion was per curiam. Sotomayor, joined by Ginsburg and Kagan, noted dissent from the order. But that doesn’t necessarily mean that the other six justices were in the majority. At least five of them agreed, and possibly six. It is possible that one other justice – perhaps Breyer – dissented but chose not to publicly acknowledge his dissent.

The voting lineup in one of the Creek Nation companion cases is even more ambiguous. On July 9, the court decided McGirt v. Oklahoma and Sharp v. Murphy. Both cases presented the same question: whether portions of eastern Oklahoma remained land reserved for the Creek Nation. McGirt split 5-4. Gorsuch wrote the majority opinion. He found that the territory retains its status as a Native American reservation. He was joined by Ginsburg, Breyer, Sotomayor and Kagan. Roberts dissented, joined by Thomas, Alito and Kavanaugh. The dissenters argued that Congress had disestablished the reservation.

Murphy was decided with a one-sentence per curiam opinion: “The judgment of the United States Court of Appeals for the Tenth Circuit is affirmed for the reasons stated in McGirt v. Oklahoma.” But Gorsuch was recused in Murphy – and as a result, only four members of the McGirt majority remained. There had to be at least five justices to form a majority in Murphy. (If the court had split 4-4, and there had been no majority, the per curiam ruling would have stated that the 10th Circuit is affirmed “by an equally divided Court.”) We can safely assume that the remaining four members of the McGirt majority remained: Ginsburg, Breyer, Sotomayor and Kagan. But who was the fifth vote? Thomas and Alito noted their dissents from the Murphy per curiam opinion, presumably for the same reasons they dissented in McGirt. So they’re out.

That leaves Roberts and Kavanaugh. One or both of them must have voted with the majority – even though they vigorously dissented in McGirt. Why? Perhaps they deemed McGirt binding precedent, which must be followed. Or one of them joined the per curiam decision as a courtesy “fifth” vote to create a majority. It is impossible to know for sure. But at least one member of the McGirt dissent must have put aside their disagreement to join the Murphy majority.

In the future, when the justices’ private papers are hopefully released, we may learn for sure how everyone voted in these two companion cases.