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Wednesday, June 07, 2006

Unanimity and Ideology on the Court

On May 21, Chief Justice Roberts gave a commencement speech at Georgetown Law, heard 'round the legal elite.  In the speech, he indicated his desire for more unanimous and narrower opinions, saying "if it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case."  The merits of this view were quickly taken up by Cass Sunstein, Edward Lazarus, and Prawfs' own Rick Garnett, among others.

So last week, I was puzzled to see a 5-4, quite broad decision handed down in the public-employee speech case Garcetti v. Ceballos , which I taught in my Employment Law class this semester.  Interesting commentary on the merits of that case collected at Workplace Prof Blog, and at Findlaw, a typically thoughtful column from my CivPro professor, Michael Dorf.

What gives? I thought 5-4 broad decisions were out under Roberts. Well, in comparing this decision to others this term -- one of which, Holmes v. South Carolina, I'll look at in more detail later in the week -- I fear that behind the talk of consensus, narrow holdings and humble judging, Roberts' conservative ideology is actually carrying the day. And as the opinions remaining come out over the next few weeks, we ought to look carefully at which opinions are unanimous, which aren't, and ask why.

So here are some possible hypotheses for the 5-4, broad decision in Ceballos:

#1: Give the new Chief Justice a break.  This is his first term, the case was clearly 4-4 and had to be reargued when Alito replaced O'Connor, Alito then joined the Kennedy opinion (which may well have originally been in dissent), end of story.  The respective opinions were already written; Roberts can only do so much at once.

This is a perfectly plausible story, and may well be an accurate description of reality -- but the question remains: in which cases does Roberts push for a narrow holding and unanimous opinion, and in which doesn't he?  Maybe he did push and failed here, but I doubt it. And this is no small case -- big issue doctrinally, affecting 21 million public sector employees.

#2: The broad, per se rule announced by the Court serves important policy and administrative goals by limiting the number of claims that come into the courts.  Maybe, though I think Jack Balkin persuasively takes apart that empirical assumption.  And it may well be that broader rulings are better, to give better guidance to lower courts, employer/employees, etc.  But that contradicts Roberts' commencement speech.  As Justice Stevens put it in dissent, the court's answer to the question "whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties" should have been “Sometimes,” not “Never.”

#3: Adopting the broad rule was the only way to rule for the defendant, which the majority thought was the right result. Indeed, the Washington Post editorial yesterday seems to adopt this view, criticizing the alternatives offered by the dissenting judges.

But here’s an alternative not mentioned: take advantage of the odd posture that the case arrived at in the Court to reverse, in favor of the defendant but narrowly, and remand.
You see, the 9th Circuit had only considered the memo Ceballos wrote to his boss as possible protected speech, and the SCt followed suit -- but as Justice Souter points out in Part III of his dissent, there was other speech for which the plaintiffs had alleged he was retaliated against.  According to the Court’s formulation, one part of the threshold inquiry under Pickering is whether the plaintiff is speaking "as a citizen" or "as an employee."  The memo was clearly "as an employee" -- and so, the court ruled, no First Amendment protection.  But the rest of the speech is murkier as to whether the speech is as a citizen, employee or both.

So, the Court could have said something like: "We doubt that Ceballos' memo to his supervisor, standing alone, constitutes speech protected by the First Amendment, as the Court of Appeals ruled.  This was the only speech considered by the Court of Appeals.  However, since there is other speech that serves as the basis for plaintiff's claim, which may well implicate First Amendment protections, we reverse and remand to the Court of Appeals to evaluate in the first instance whether this speech is protected by the First Amendment." 

That gets you nine votes, it's narrow, you decide only what you need to and no more. Indeed, according to the end of Souter’s dissent, this kind of remand is the result anyway.

So where does that leave us?  With my leading hypothesis to explain 5-4 and broad:

#4: It's a Ninth Circuit opinion, by Judge Reinhardt, with a special concurrence (really, a dissent) by Judge O'Scannlain no less.  Given the current lineup in the Supreme Court, the case was decided after the Alito for O'Connor substitution, and by glancing at Los Angeles County's cert petition, which could barely wait to the third paragraph of its “Statement of the Case” to mention Reinhardt as the author of the opinion.  Its second argument in support of cert is titled "The Ninth Circuit Has Refused to Give Any Consideration To..."  No need to read further, game over.

And when you're giving the crazy liberal Ninth Circuit, particularly Reinhardt, a smackdown, why go easy on them?  Take that, Reinhardt; here's a victory, employers, in your constant battle against those pesky employees -- Roberts, after all, was known as the business community's "go-to lawyer" while in private practice; the broader the better on this one.  Political scientists and legal realists 1, doctrinal scholars 0. Roberts’ commencement speech less than 2 weeks before?  For the moment, forgotten.

Posted by Jason Solomon on June 7, 2006 at 12:22 AM | Permalink


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» \"Rehnquistian pragmatic formalism\": is our Fearless Leader really a minimalist? from I Respectfully Dissent
Ever since his speech at Georgetown, the blawgosphere has been abuzz with discussion about Chief Justice John Roberts\' apprently-espoused minimalism and its consequences. I have to confess to some doubt about both. [Read More]

Tracked on Jun 9, 2006 4:31:15 PM



I assume that Ceballos and Holmes came out the way they did because the authors of the majority opinions in Ceballos and Holmes wanted to write them that way. I don't see why that wold make Roberts' assigning powers "meaningless," and I don't see what that has to do with my comment about how Roberts writes his opinions, either.

Posted by: Orin Kerr | Jun 7, 2006 7:24:53 PM

why didn't he use that skill in Ceballos to avoid a 5-4 broad ruling? I suggest that ideology may be the reason -- that Ceballos was a ruling in favor of the employer ("conservative" position) and therefore broad was OK, and that Holmes was in favor of a criminal defendant (the "liberal" position), and therefore cabining the ruling was important.Is it really clear that Roberts regards minimalism as a virtue in and of itself, as opposed to the more pragmatic take that minimalism is a tool which he regards as having the virtue of keeping as many justices on board as possible - and its this latter proposition (getting stronger majorities) that he regards as being important?

Why isn't it equally likely that Roberts' "narrower is better" rule is relaxed when it becomes apparent that gap between the dissenters and the majority is irreconcilable? Garcetti was a broad holding, but was it really the breadth of the result - rather than the result - that drove Stevens, Souter, Ginsburg and Breyer into dissent? Now, if it was possible that a narrower opinion might have attracted Breyer, for example, that is one thing; but if, on the other hand, it was the situation that the four dissenters just flat-out wouldn't accept the result, and if Roberts goal is not narrow rulings per se, but rulings that command the greatest majority possible, then it becomes irrelevant (at least from the standpoint of tactics) whether the opinion is narrow or broad, because in either event, the case would still have come out 5-4 (assuming, that is, that writing a narrow ruling did not splinter the majority by provoking a concurrence from Scalia and/or Thomas). That being the case, I would suggest that someone who is as pragmatic enough to think that a narrower ruling supported by more justices is better than a broad ruling supported by a bare majority would also be pragmatic enough to say "well, if we can't have a stronger majority, we might as well go to the second-tier virtue of writing a clear and unambiguous opinion."

Posted by: Simon | Jun 7, 2006 2:24:44 PM

Now I'm a little confused, Orin (see two comments up). Is your position really that the Chief Justice's power to assign opinions when he is in the majority is meaningless? I don't know how much support you'll get for that one, particularly in light of Rehnquist in Hibbs and other examples. I'm talking about two cases -- Ceballos and Holmes -- where Roberts was in the majority, and therefore could assign the opinion, including to himself. In Ceballos, it went to Kennedy and ended up broad; in Holmes, it went to Alito and came out narrow. There's this one legal blogger, a guy named Orin Kerr, who wrote a few weeks ago about the "the Chief's apparent skill at writing opinions the entire Court will join." (Brigham City post, 5/22/06) So why didn't he use that skill in Ceballos to avoid a 5-4 broad ruling? I suggest that ideology may be the reason -- that Ceballos was a ruling in favor of the employer ("conservative" position) and therefore broad was OK, and that Holmes was in favor of a criminal defendant (the "liberal" position), and therefore cabining the ruling was important.

Maybe that's not fair. Maybe you mean that if Roberts really cared about avoiding broad, pro-criminal defendant rulings, for example, he would have switched sides in Georgia v. Randolph and written a narrower ruling than Souter did. That's an interesting point, but (a) unlike Ceballos and Holmes, he would have had to change his mind on the result, which he may not have been able to stomach -- the job is deciding cases, after all; (b) perhaps he thought his dissent might prove persuasive to a future Court down the road; and (c) maybe he's not as committed to narrow, unanimous rulings as many think. Which may be just fine, but still worth asking what trumps the desire to issue narrow, unanimous decisions.

Posted by: Jason Solomon | Jun 7, 2006 12:52:48 PM

I'm not saying that Justice Brennan was a minimalist - far from it! Rather, I'm saying that from all the accounts I have seen, he was keenly aware that it took five votes to do anything, and so he was willing to accomodate practically any request if it got him a majority. Thus, my comparison between Roberts and Brennan had more to do with both having a pragmatic sense that it is more important to get five votes than it is for a ruling to achieve doctrinal purity. For example (to take a no doubt silly flight of fancy), in this week's ruling in Zedner, suppose five justices had been unconvinced by the evidence minus the legislative history section. Do you put the legislative history section in, and get the right result, as Roberts, Brennan, probably Rehnquist and apparently Alito would do, or do you stand on principle and lose gloriously, as would Scalia?

So I apologize if my choice of words was inapt.

Posted by: Simon | Jun 7, 2006 12:49:17 PM


Since when was Justice Brennan a minimalist who was willing "to narrow the holding more and more until all nine can sign on"? Until five can sign on, sure. But Brennan was very happy to use his five votes for all they were worth.

Posted by: Sam Bagenstos | Jun 7, 2006 12:31:10 PM

Thanks for your response, Jason. I'm curious, though, as to what powers you think Roberts has to shape narrow unanimous opinions.

For example, probably the most dramatic doctrinal change so far this term was a Fourth Amendment case, Georgia v. Randolph, in which a 5 Justice majority (with Roberts dissenting) dramatically reworked the third party consent doctrine in an opinion by Justice Souter. The opinion appears to gives criminal defendants considerably more privacy rights than before. If your hypothesis is that Roberts is in charge and making choices, why did Roberts decide to lose the case and let Souter write a very sweeping opinion for the majority?

Posted by: Orin Kerr | Jun 7, 2006 11:43:04 AM

My understanding of our Fearless Leader's comments was that he thinks a case should usually be decided on the narrowest grounds appropriate, which in any event stops short of a Brennan-esque willingness to narrow the holding more and more until all nine can sign on. But in any event, perhaps it is simply the case that in Garcetti (as it will presumably be in other cases) there was simply no way to reconcile the competing views of the case. If there was simply no way that the four would join a majority opinion that actually decided the case (or, worse yet, if narrowing the ruling would risk splintering the majority), it makes some degree of sense for the ruling to find its natural level of generality.

I think it's actually quite a good sign, myself. I don't really agree with the minimalist ethic.

Posted by: Simon | Jun 7, 2006 9:21:58 AM

Orin--Thanks for your comment. Yes, comparing these two cases (Holmes later this week) doesn't come close to meeting Lee Epstein and Gary King's "rules of inference" for undereducated legal scholars. I'm looking at observations for theory development, and when we get enough cases, I'd love to join up with anyone who wants to run regressions with the dependent variable being "unanimous" on the Roberts court.

But Orin, I do think you misunderstand my point a bit. Roberts has choices, conscious and unconscious, about where to push for unanimity and narrowness. The high rate of unanimity so far obviously hasn't happened by accident. And my point is simply to present a hypothesis that the broader rulings come in cases consistent with his (to use a crude but widely accepted term) conservative ideology, while the narrow ones come in cases that rule for criminal defendants, civil plaintiffs, etc.

Yes, of course it's too soon to make definite conclusions. So, as I say in the post, I think we need to "look carefully" at how this plays out in the coming weeks and beyond.

Posted by: Jason Solomon | Jun 7, 2006 8:06:08 AM


I don't understand. Is your view that because Justice Kennedy wrote an opinion for a 5-4 court in a single case that was less narrow than it could have been, "Roberts' conservative ideology is actually carrying the day" and his preference for narrow consensus opinions is some sort of a ruse? How can you make that conclusion based on one decision that Roberts didn't even write? And why not look at the Term as a whole, rather than one decision?

Posted by: Orin Kerr | Jun 7, 2006 1:59:39 AM

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