Today the Court summarily reversed the Fourth Circuit in Klein v. Martin, an AEDPA case. As Jon Adler noted, the Fourth Circuit may be the new Ninth Circuit for habeas. But the vote here was not unanimous. Justice Jackson would not have granted the writ, though she did not include an opinion explaining her reasoning. She only offered a single sentence:
JUSTICE JACKSON would deny the petition for a writ of certiorari.
There is a long-running debate about how many votes are needed for a summary reversal. Is it five or six? Here, as many as three other justices might have agreed with Jackson, and not noted their vote, but I think it unlikely.
I did a quick search for summary reversals, where there is not some intervening merits decision, and where a Justice would deny the writ without a published opinion. There are only a few examples from the Roberts Court.
- Box v. Planned Parenthood of Indiana & Kentucky, Inc., 587 U.S. 490, 493, 139 S. Ct. 1780, 1782, 204 L. Ed. 2d 78 (2019) ("Justice SOTOMAYOR would deny the petition for a writ of certiorari as to both questions presented.")
- Sears v. Upton, 561 U.S. 945, 956, 130 S. Ct. 3259, 3267, 177 L. Ed. 2d 1025 (2010) ("THE CHIEF JUSTICE and Justice ALITO would deny the petition for a writ of certiorari.").
- Erickson v. Pardus, 551 U.S. 89, 95, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007) ("Justice SCALIA would deny the petition for a writ of certiorari.").
- Los Angeles Cnty., California v. Rettele, 550 U.S. 609, 616, 127 S. Ct. 1989, 1994, 167 L. Ed. 2d 974 (2007) ("Justice SOUTER would deny the petition for a writ of certiorari.").
There were a number of dissents with an intervening precedent, and a Justice disagreed with the GVR, but did not issue an opinion. Justices Thomas and Gorsuch cast several such voters after Ramos.
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