Justice Kagan wrote on behalf of eight justices—not seven—in Chiafalo v. Washington

I’ve seen several versions of the claim that Justice Elena Kagan’s opinion in Chiafalo v. Washington was “on behalf of seven justices,” with Justice Clarence Thomas concurring in the judgment, joined in part by Justice Neil Gorsuch.

That’s not accurate. Justice Kagan’s opinion is on behalf of eight justices, all but Justice Thomas. This comes from the case syllabus:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined as to Part II.

Admittedly, one’s eyes might glaze over the caption to see that Justice Thomas concurred in the judgment, in which Justice Gorsuch joined, and conclude that Justice Gorsuch did not join Justice Kagan’s opinion. But according to the case caption, he joined Justice Kagan’s opinion in full, and he joined part of Justice Thomas’s opinion.

This is a curious move, to say the least, and feels a little belt-and-suspenders for Justice Gorsuch. Justice Kagan’s opinion relies on states having power under Article II and the Twelfth Amendment, which “give[s] States broad power over electors.” Justice Thomas’s opinion relies on states having power under the Tenth Amendment: “When the Constitution is silent, authority resides with the States or the people. This allocation of power is both embodied in the structure of our Constitution and expressly required by the Tenth Amendment.” He continues, “Put simply, nothing in the text or structure of Article II and the Twelfth Amendment contradicts the fundamental distribution of power preserved by the Tenth Amendment.”

Justice Gorsuch didn’t join Justice Thomas’s part of the opinion describing Article II and the Twelfth Amendment as simply an obligation on the states rather than a source of power to the states. So he might agree that there’s power in Article II and the Twelfth Amendment, and he wants to emphasize the structural point of the Tenth Amendment.

But there might be another reason. Might. Justice Gorsuch might have sought to protect this line of Justice Thomas’s opinion from attack by Justice Kagan’s majority opinion, which did, after all, secure eight justices. Justice Kagan did attack Part I of Justice Thomas’s opinion, but she didn’t make any mention of the Tenth Amendment—and for that, Justice Gorsuch could join in full. Indeed, it might be a reason why Justice Gorsuch didn’t need to identify a separate endorsement for Justice Thomas’s position in Baca. It preserves a line of Tenth Amendment reasoning for future cases that hasn’t been expressly dismissed by a majority of the Court.

Maybe it’s too much speculation at this point. But the opening point of this post still remains—eight justices, not seven, joined in the principal opinion in Chiafalo.

 I revised the title because the post was confusing. My apologies!