(Updated) Travis Crum Guest Post: Justice Scalia’s Draft Dissent from Denial of Certiorari in Rice v. Cayetano.

This is a guest post by Professor Travis Crum:

Last week, I was in Washington, DC, and stopped by the Library of Congress to check out the newly opened papers of Justice Stevens. Given my interest in the Fifteenth Amendment, I pulled the file for Rice v. Cayetano.

In that 2000 decision, the Court invalidated on Fifteenth Amendment grounds a Hawaii law that limited who could vote for trustees for the Office of Hawaiian Affairs (OHA) to “Native Hawaiians,” that is, persons who could trace their lineage back to Hawaii before Captain Cook’s landing in 1778. The Stevens Papers reveal that Justice Scalia successfully used a draft dissent from denial of certiorari to push the Court to grant cert. I’ve posted pictures of the previously unpublished opinion on Twitter, but here’s a quick summary of the behind-the-scenes machinations.

The Ninth Circuit had upheld Hawaii’s law on the theory that the OHA was tasked with managing property for the benefit of native Hawaiians and that the voting qualifications were “not primarily racial, but legal or political.” At the first conference, there were three votes for granting cert: O’Connor, Scalia, and Thomas. Justice Stevens’s notes indicate that the case was re-listed for Justice Kennedy to re-consider it. Ultimately, Kennedy stuck by his initial vote to deny cert.

In the meantime, Scalia circulated a draft dissent from denial of certiorari which excoriated the Ninth Circuit for upholding the facially discriminatory law. Justice Scalia’s dissental emphasized a colorblind vision of the Constitution and the Fifteenth Amendment’s clear prohibition on racially discriminatory voting qualifications. Unsurprisingly, Thomas circulated a memo agreeing to join Scalia’s opinion.

What is surprising is where the fourth vote to grant cert came from: Justice Ginsburg. The papers do not reveal directly whether Scalia’s draft dissental persuaded RBG, but it is easy to surmise given that RBG switched her vote at the very next conference. Intriguingly, RBG voted to grant cert even though she ended up being one of two dissenters in the case, along with Stevens.

Scalia did not write a published opinion in Rice. Instead, the majority opinion was assigned to Kennedy. Thus, this is not a case where a cert-stage document becomes a template for a subsequent majority opinion. But at a time when Will Baude and Steve Vladeck have us re-thinking the Court’s agenda-setting power through the shadow docket, Justice Scalia’s unpublished dissental in Rice showcases how the Court decides what to decide and how Justices can cajole their colleagues into changing their minds and granting cert.

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