I was just going to say that Donofrio must have gotten at least two votes, Thomas and Scalia, but probably your guess of three may be likelier.
- - -
Donofrio didn’t get any votes. When a Justice dissents from an order, it shows up on the Order List. (There were two such orders in the list today - Stevens dissented).
Donofrio’s order shows no dissent. Thus, there was no vote for granting the application or treating the application as a writ.
Thanks. Odd. An alternative explanation is that Scalia spoke up and said he’d rather look at the other case becaue he thought it was stronger.
Otherwise, why would Thomas bring it forward, and then not vote for it?
I suppose the question is naive. SCOTUS does what it pleases, no doubt.
Actually, my understanding is that this isn’t always the case. A justice can vote to grant cert during conference, but that’s not always noted on the order list. Usually you’ll see notes about the four libs noting that they would grant cert on death penalty appeals.