Revealing Other Justices' Votes in Trump v. Illinois

When and How Should We Know Each Justice's Vote?

One interesting feature of the Supreme Court’s recent National Guard decision, Trump v. Illinois, is that one justice effectively revealed the votes of other justices.

In shadow/interim/emergency/irregular docket cases, the justices often issue unsigned orders or opinions, and there is no strong norm that every justice must reveal his or her vote. So, even when some justices note their dissent, it is possible that still other justices have silently or invisibly dissented, or concurred in the judgment of the Court (or made still other voting decisions). For example, a per curiam opinion paired with a three-justice dissent would leave it unclear whether five or six justices signed on to the per curiam decision.

In Trump v. Illinois, however, the full vote lineup was clear. The Court issued an order with an unsigned supporting opinion. (Notably, the opinion is not styled as a per curiam.) Justice Kavanaugh concurred in the judgment. And Justices Alito, Thomas, and Gorsuch wrote or joined dissenting opinions. This arrangement makes it clear that all five unnamed justices must have joined the unsigned opinion. Not only did they not dissent, in other words, but they must have endorsed the unsigned opinion’s rationale.

Imagine that, instead, Justice Kavanaugh issued a full concurrence. Readers would then have to guess at how the five unnamed justices had voted. Any one of the unnamed justices, that is, could have silently dissented or else declined to join the unsigned opinion. So, by declining to join any part of the unsigned opinion, Kavanaugh seems to have revealed how five of his colleagues voted.

Or perhaps not. Justice Kavanaugh’s apparent control over this information takes for granted that all other justices’ votes are held constant. But changing our assumptions can shift who seems to wield this power. Imagine, for instance, that Justice Gorsuch was the last justice to decide his vote. If he then joined the unsigned opinion, he would create plausible deniability for six justices: The Chief Justice, Justice Sotomayor, Justice Kagan, himself, Justice Barrett, and Justice Jackson — any one of whom might have silently declined to join the unsigned opinion or even dissented. By openly dissenting, however, Gorsuch ensured that all votes were known.

One might respond that none of this matters, since the only legally relevant questions are whether the Court’s judgment and unsigned opinion garnered majority support. But the majoritarian test for legal validity omits much that is informally relevant. Here, it matters that the bottom-line vote in Trump v. Illinois was 6-3. And we would not know that significant fact if Justice Kavanaugh had fully concurred. We would instead have had to wonder if the bottom-line vote was 5-4 (or 5-1-3).

In addition, justices’ personal precedents are highly significant in practice and possibly part of, or partly constitutive of, the law. Advocates know this. They will be eager to understand which exact justices have adopted which exact legal positions. Because of the vote breakdown in Trump v. Illinois, advocates know that five particular justices at least tentatively adopted the unsigned opinion’s legal theory. Had Justices Kavanaugh concurred, by contrast, advocates would be unsure about the positions adopted by most members of the Court.

This situation raises at least three issues.

The first is strategic. Could justices sometimes want to reveal more information about a decision’s voting makeup, or even “out” one another’s votes? Perhaps a justice would want to make public how another colleague or group of colleagues voted, thereby increasing the odds that they stick to that position in the future. Or a justice could conceivably want to expose another justice to public scrutiny and criticism for casting a vote, rather than allowing them plausible deniability later on. Each of these strategic impulses also invites the opposite: a justice might want to conceal vote information, eliminate worries about inconsistency, or protect oneself or one’s colleagues from being exposed to public scrutiny. The justices might even work together to ensure that full information is or isn’t disclosed.

The second issue is reformist. Critics have argued that decisions like Trump v. Illinois are “shadow” docket decisions in part because they can obscure the votes of individual jurists. Yet the opposite view is also plausible and evident in the scholarly literature. Perhaps a substantial degree of decisional anonymity is good, especially when rulings are made rapidly without full briefing and argument. Anonymity and plausible deniability arguably submerge judicial personality, avoid lock-in, and foster a more institutional mentality. So there is a law reform question about whether to eradicate, expand on, or continue studying the unusual lack of full transparency on the shadow/interim/emergency/irregular docket.

The third and final issue is collegial or deontic. Is there something untoward, even objectionable, about allowing one justice (or one group of justices) to reveal the votes of another justice (or group of justices)? A judge might demand or be entitled to autonomy over the visibility of his or her own vote. If so, should there be a norm against strategically outing the votes of other jurists? Or perhaps it is appropriate for some justices, especially when outnumbered, to trigger a greater degree of transparency. With respect to Congress, the Constitution provides that “the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal” (Art. I, s. 5, cl. 3; see also Will Baude noting this parallel at n.53 here). Yet individual accountability may be at more of a premium in the legislative branch.

To be clear, I have no direct evidence that any justice in Trump v. Illinois or any other case has even thought about these strategic possibilities and motives, much less acted on them. But the mere possibility is interesting and fodder for debate, perhaps leading to changes in rules or practices.