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Wednesday, June 07, 2017

SCOTUS OT16 Symposium: A few more thoughts on majority opinions

Ian’s post on the assignment power, building on Howard’s earlier post, asks why opinions of the Court have to be assigned at all, rather than just traded off among the Justices. This brings to mind a more general question: why do we even need an “opinion of the Court”? Or, to put it another way, how much effort should the Justices invest merely in order to “get to five”?

The Court probably isn’t about to return to seriatim opinions—though in certain ways that might be nice. From a separation-of-powers perspective, seriatim opinions are plainly the Justices’ opinions about the law. That’s distinct from the Court’s judgment, which is legally binding under Article III. (See Will’s helpful article on the subject.) By contrast, the unified structure of an “opinion of the Court” can suggest, in my view misleadingly, that the opinion itself is the binding law.

These worries aside, I’ve read enough seriatim opinions to understand the desire for a single authoritative statement from the Court. Law professors may revel in a sea of opinions, but practitioners don't want to sort through a pile of separate documents to identify the propositions that the Justices held in common. Issuing a single opinion, agreed to by a majority, helps courts, lawyers, and the public figure out what the Justices think.

Requiring five votes, though, doesn’t itself generate agreement on the law. If the Justices irreducibly disagree, they aren’t going to generate a single opinion with a single, coherent, well-reasoned rationale. Their disagreement is going to show up somewhere, and the only question is where to push the bump under the rug. In fact, insisting on a single majority opinion might make things worse.

How does the Court respond to disagreement? One approach is to secure five votes by turning the opinion’s reasoning into mush. Compromising on the rationale to get a majority opinion means compromising all the interests that make opinions for the Court useful—e.g., producing a fact-bound opinion effectively good for that case only, or articulating standards so vague that they fail to provide effective guidance for the future.

Another approach looks like Adarand Constructors v. Pena, 515 U.S. 200 (1995):

O’Connor, J., announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views expressed in the concurrence of Scalia, J., and an opinion with respect to Part III-C. Parts I, II, III-A, III-B, III-D, and IV of that opinion were joined by Rehnquist, C. J., and Kennedy and Thomas, JJ., and by Scalia, J., to the extent heretofore indicated; and Part III-C was joined by Kennedy, J. Scalia, J., and Thomas, J., filed opinions concurring in part and concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined. Souter, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined.

There are at least three problems with this approach. The first is that it’s occasionally incomprehensible. The second problem is that it distorts the precedential value of the opinions. Law students almost always miss when the label changes from “Opinion of the Court” to “Opinion of Burble, J.” at the top of the page. So the unjoined portion of the otherwise-majority opinion typically gets undue attention, far more than it deserves (or than is paid to a plurality opinion or a concurrence with similar numbers), simply because it comes from the assigned author’s pen. The third problem is that it’s very hard for the Justices to write an effective opinion that’s only partly for the Court. Only the rare stylist is capable of writing an opinion that’s equally coherent with or without some large chunk in the middle. No matter what, Part VII always depends in part on the existence of Part V; and if only Part VII has a majority, it’ll be just as difficult for other courts to apply it in Part V’s absence.

So my proposal is as follows. Majority opinions and individual opinions serve different functions, and the Court should help readers distinguish these functions by separating them at a structural level. In the courts of appeals, this is sometimes done through multiple opinions by the same author: my old boss Judge Williams would occasionally write a concurrence to his own majority opinion, to better reflect which propositions enjoyed majority support and which were frolics of his own. Similarly, Justice Holmes would occasionally author majority opinions dubitante, as in Javierre v. Central Altagracia, 217 U.S. 502, 508 (1910):

Notwithstanding these considerations, I should have preferred to affirm the decree, but, as my reasons have been stated to my brethren, and have not prevailed, it is unnecessary to repeat them now.

Decree reversed.

If the Court doesn’t want to go that far, it could accompany the maze of opinions in complex merits cases with a per curiam opinion, every sentence of which would be guaranteed to enjoy five votes. That per curiam opinion wouldn’t need to state a coherent rationale for the judgment; by assumption, there is no such rationale that enjoys majority support. Instead, it could say things like “Four Justices reach this result because of X, while two others do so because of Y.” It would resemble an extended, integrated version of the syllabus—but it would carry the imprimatur of the Justices, not just of the Reporter of Decisions. As a result, any court or lawyer wanting only to know “what does this case require of me tomorrow” could consult the per curiam, while anyone interested in assessing the Justices’ disagreements or making predictions about future cases could look to the concurrences and dissents.

When the Court decides a case, we need to know what a majority is likely to affirm or reverse, and also what they’ll be thinking when they do. It’s best for everyone if these two interests happen to line up. But if not, the second-best alternative may not be a patchwork attempt at a five-vote opinion. Justice Scalia once hotly criticized what he saw as a “specious unanimity”; and whatever one might think of his opinion in that case, it’s fair to say that broader majorities can add to confusion as well as reduce it. If the Justices take different views of the law, it’s often better for the legal system that their disagreement be confronted and understood.

Posted by Stephen Sachs on June 7, 2017 at 12:09 AM in 2016-17 End of Term, Constitutional thoughts, Judicial Process, Symposium | Permalink


Interesting post. I suppose one reason for the current approach may just be that it requires less work of the Justices. If Justice Burble is assigned the majority opinion, circulates a draft op, and he can't get a majority on each issue, then there's no need to go back and redraft anything. Burble can just mark which parts of the op are opinions of the Court and which ones are not. That time-saving may not matter much early in the Term, but it may matter by June.

Posted by: Orin Kerr | Jun 7, 2017 1:12:26 AM

Good point. Though often they know at the time of Conference that it'll be a mess. And the courts of appeals manage to figure it out, though they have looser time limits (and three people require less coordination than nine). So I think it's an issue, but not an insuperable barrier.

Posted by: Stephen Sachs | Jun 7, 2017 6:49:49 AM

NY Times v. United States (Pentagon Paper) sort-of days what you suggest: A three-page per curiam laying out some general principles, followed by concurring opinions bearing the names of each of the six Justices in the majority.

Posted by: Howard Wasserman | Jun 7, 2017 7:52:12 AM

My favorite example of this kind of confusion (which likely reflects the process described by Orin and an accurate description of what occurred way back when I clerked) is Chavez v. Martinez, 538 U.S. 760 (2003), in which the (very brief) opinion of the Court pops up in Justice Souter's opinion, which follows what seems to be the lead opinion.

Larry Rosenthal

Posted by: Larry Rosenthal | Jun 7, 2017 11:17:51 AM

I'm a little hesitant about those sorts of per curiams. I take it their utility would be to facilitate Marks analysis, but how authoritative would a per curiam summary of more extended opinions really be? Suppose a court has a logical-subset theory of Marks, on which the fact that an ostensibly narrower opinion would sometimes generate results that the broader pluraliy opinion would not generate disqualifies the narrower opinion from stating a Marks rule. And suppose that this small area of non-overlap is only clear if you actually read the separate opinions, but that the per curiam states the rules at a high enough level of generality that from the per curiam alone one would think the one opinion is a logical subset of the other. Would the per curiam control, or is it really just one long dictum that characterizes the truly dispositive opinions underneath it?

Posted by: Asher Steinberg | Jun 7, 2017 8:27:11 PM

The Adarand type is confusing for the general public as well.

It seems to me that it would be good practice to clearly spell out what five justices agree upon instead requiring the reader figure it out themselves by in effect trying to figure out the common denominator. At times, the writer of the opinion DOES spell out what occurred, including saying some portion is the law before a majority didn't agree.

I also find it annoying when the writer of the plurality don't have the most votes. For instance, in one religious display case, Scalia wrote the plurality. But, the concurring justices along with the two dissenters in effect had a majority on the law.

Posted by: Joe | Jun 7, 2017 10:58:57 PM

Edit: "including saying some portion is the law before a majority didn't agree" ... "including saying some portion is not the law because a majority didn't agree" (and clarifying what the law is)

I agree Chavez v. Martinez is a good example.

Posted by: Joe | Jun 7, 2017 11:03:28 PM

A more radical approach might be to require one opinion with five justices' votes and none of those writing separately. If that is not achieved, the lower court opinion is affirmed without opinion by anyone. This might help drive the thought that the court that should speak as an institution not individual justices broadcasting their own particular views about an issue.

Posted by: Bill Thompson | Jun 8, 2017 3:07:18 PM

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