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The first two were on the same day, November 2, 2018.
In the census litigation, the Court denied the Justice Department's application for a stay over noted dissents from Justices Thomas, Alito, and Gorsuch:
supremecourt.gov/orders/courtor…
In the census litigation, the Court denied the Justice Department's application for a stay over noted dissents from Justices Thomas, Alito, and Gorsuch:
supremecourt.gov/orders/courtor…
And in the Juliana climate change case, the Court also denied an application for a stay from the Solicitor General, this time with Justices Thomas and Gorsuch noting that they would have granted the application:
supremecourt.gov/orders/courtor…
supremecourt.gov/orders/courtor…
I'm assuming, in both cases, that the Chief Justice voted to _deny_ the requested stay.
It's at least possible (if unlikely, in my view) that he voted to grant the stays but declined to publicly note as much.
In the second pair of cases, though, there's no need to assume:
It's at least possible (if unlikely, in my view) that he voted to grant the stays but declined to publicly note as much.
In the second pair of cases, though, there's no need to assume:
On December 21, #SCOTUS denied the Solicitor General's application for a stay in the asylum ban case, this time, with _four_ Justices (Thomas, Alito, Gorsuch, and Kavanaugh) noting that they would have granted the application:
supremecourt.gov/orders/courtor…
supremecourt.gov/orders/courtor…
We saw the same lineup Thursday, when the Court _granted_ a stay of the Fifth Circuit's decision in the LA abortion case, with Justices Thomas, Alito, Gorsuch, and Kavanaugh noting that they would deny the application (and Kavanaugh filing a dissent):
supremecourt.gov/opinions/18pdf…
supremecourt.gov/opinions/18pdf…
When four Justices note a dissent with respect to a stay, that necessarily means that the other five voted the other way. At least with respect to these two stays, it's therefore clear that the Chief Justice not only joined his more progressive colleagues, but was the swing vote.
It's hard to make generalizations both from such a small data set and from the Court's orders docket (as opposed to cases yielding full opinions).
Especially in the last two examples, though, I can't imagine the Chief Justice voting the same way if he _wasn't_ the swing vote.
Especially in the last two examples, though, I can't imagine the Chief Justice voting the same way if he _wasn't_ the swing vote.
To me, that doesn't necessarily portend a shift in how the Chief Justice approaches cases on their merits. But it does suggest that institutional considerations are factoring into at least some of his votes on important orders—and may continue to do so for the near future.
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