Eugene Volokh notes that the Supreme Court denied his petition for certiorari challenging Oregon’s practice of allowing convictions by 10–2 and 11–1 votes. If the Court had granted this petitioner, perhaps it could have clarified the somewhat muddled state of our incorporation jurisprudence. Following McDonald’s 4-1-4 split, the role of the Privileges or Immunities clause in incorporation contexts is unclear. The challengers in this case sought review based on P or I as well as due process.

I’m quite curious how Justice Thomas would have voted in this case, as he expressly repudiated due process incorporation.