Earlier this month, a U.S. Supreme Court decision put Wisconsinites in the position of choosing between their right to vote and their health when the state held its primary election during the COVID-19 pandemic. The results of that election are in, but still unknown is which justice actually wrote the court’s first coronavirus-related — and much criticized — decision.
The case, Republican National Committee v. Democratic National Committee, aimed to block a lower federal court from giving voters more time to mail in absentee ballots for the April 7 primary. It reached the Supreme Court as an emergency application presented to Justice Brett Kavanaugh, the court’s newest justice who handles emergency matters for the U.S. Court of Appeals for the Seventh Circuit, which includes the state of Wisconsin. Kavanaugh, in turn, referred the case to the full court for consideration.
The court’s final decision came in the form of a per curiam — or unsigned — opinion which historically was reserved for a ruling so uncontroversial that the entire court is in agreement.
Does it matter that the author of the Wisconsin per curiam is anonymous? A number of legal scholars who have studied the court’s per curiam opinions over the years would say it does. It’s a matter of transparency. Anonymity, they contend, weakens accountability for the decision and may serve as a shield for contentious rulings written by individual justices. And, they would add, the Supreme Court has strayed far from the original intent behind a per curiam opinion — to the detriment of the public and the development of law.
Challenges to state and local stay-at-home and business closure orders are currently in the lower courts, involving cultural flashpoints like abortion procedures, gun stores and religious services. All of those cases and more could reach the Supreme Court in coming weeks. If they do, per curiam opinions once again could be the favored vehicle for unpopular rulings by a divided Supreme Court.
In the Wisconsin voting case, it’s clear that the majority opinion was written by one of the court’s five conservative justices — Kavanaugh, Clarence Thomas, Samuel Alito Jr., Neil Gorsuch or Chief Justice John Roberts Jr. — because Ruth Bader Ginsburg led her three liberal colleagues in a signed dissenting opinion.
From there, trying to narrow down the author becomes speculation. It’s possible that the chief justice, who assigns opinions when he is in the majority, gave the per curiam writing task to Kavanaugh, who first received the case. It’s also possible that Roberts, who has taken a special interest in election law cases, kept the writing chore for himself or assigned it to one of the remaining three justices.
When else have anonymous opinions been used?
Per curiam, translated from Latin, means “by the Court.” Black’s Law Dictionary—the Merriam-Webster of the legal world—defines per curiam as “an opinion handed down by an appellate court without identifying the individual judge who wrote the opinion.”
The first published Supreme Court per curiam in 1862 was true to the Latin meaning —reflecting it had the support of the entire court.
“The subtext of a per curiam was clear: this case is so easily resolvable, so lacking in complexity or disagreement among the Justices, that it requires only a brief, forthright opinion that any member of the Court could draft and that no member of the Court need sign,” wrote legal scholar Laura K. Ray in a 2000 law review article.
From 1862 until the early 1900s, the justices used per curiams to deal with routine matters such as denials of review, dismissals of cases for lack of jurisdiction or brief reversals of lower court decisions.
“These early opinions often comprised only a sentence or two, rarely more than a paragraph, and never displayed disagreement among the Justices,” wrote legal scholar Ira Robbins of American University Washington College of Law in a 2012 law review article.
But a shift began in the early 20th century, as per curiams began to include dissenting and concurring opinions by individual justices and to deal with substantive law. Over time, per curiams also became, as Robbins wrote, “a strategic device to resolve time-sensitive cases quickly, as a protective shield from controversial issues, and as a way to make new law by indirection.”
The Wisconsin per curiam appears to fit at least two of the three strategic devices. The court was under the pressure of an impending primary election to make its decision about absentee ballots quickly, and the majority may have been—or should have been—keenly aware that whatever it ruled would be controversial.
Some of the court’s more famous per curiams include New York Times Co. v. United States (Pentagon Papers publication), Furman v. Georgia (striking down the death penalty) and Buckley v. Valeo (campaign finance restrictions and perhaps the longest per curiam in history—138 pages). All three per curiams were followed by multiple concurring and dissenting opinions.
Perhaps the most famous—or infamous, depending on your perspective—per curiam in recent memory is Bush v. Gore, which essentially decided the outcome of the 2000 presidential election in a 5-4 ideologically-divided decision. The unsigned opinion included five separate signed opinions—one concurrence and four dissents.
When the justices have been questioned about transparency and accountability in the Supreme Court, a number of them have responded that their signed decisions and their recorded votes tell the public all that it needs to know about their positions on the legal questions that they face.
But Robbins has argued, “When courts use an anonymous veil, they lose the benefits of the signed opinion—the environment of transparency, individual responsibility, and well-reasoned explanation—that keep the judiciary credible and accountable.”
The per curiam also may be seen by the public as a tactic used for political reasons, as many people viewed Bush v. Gore, which harms the credibility of the institution.
Over time, research by journalists and scholars showed that Justices Anthony Kennedy and Sandra Day O’Connor were the primary authors of Bush v. Gore, and some day the public may discover who wrote the Wisconsin per curiam. But for now, the unsigned ruling in the Wisconsin case, pitting Republican officials against Democratic officials, may further contribute to the cynicism surrounding the court’s division along ideological lines.