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Tuesday, November 02, 2010

When is a Majority Opinion Really a Plurality Opinion?

A student and I have been fighting over United States v. Verdugo-Urquidez -- the 1990 Supreme Court decision that is cited for the proposition that the Fourth Amendment categorically does not apply to non-citizens outside the territorial United States.  I have long read Chief Justice Rehnquist's opinion in that case as only being for a plurality, at least with respect to that specific holding. My student rightly pointed out that no one on the Court seemed to treat it that way, including the reporter, who didn't make the normal notations that signify a plurality opinion. And Justice Kennedy seems to share this view, given that his concurrence (which, in my view, is only a concurrence in the judgment) expressly says "Although some explanation of my views is appropriate given the difficulties of this case, I do not believe they depart in fundamental respects from the opinion of the Court, which I join."

In a nutshell, here's my argument: Kennedy's concurrence only concludes that "the Constitution does not require United States agents to obtain a warrant when searching the foreign home of a nonresident alien." His analysis, as his opinion makes clear, is quite distinct from the categorical approach to the question that Rehnquist undertakes (moreover, he, unlike Rehnquist, doesn't over-read Johnson v. Eisentrager). Given that, isn't it more accurate to read Verdugo as only holding what Kennedy said, i.e., that the Warrant Clause doesn't apply to searches of the foreign homes of nonresident aliens? That would leave open the possibilities that (1) the rest of the Fourth Amendment applies to such searches; and (2) the Warrant Clause applies in other contexts. Although I suspect a negative answer to (2) would also follow from Kennedy's analysis, (1) strikes me as a serious issue, and one for which there were only four votes in Verdugo.

So does form or function govern when deciding whether a particular holding is for a plurality or a majority? If it's function, I feel pretty good about my argument. If it's form, doesn't that give a lot of power to the Supreme Court's Reporter of Decisions, or, at the very least, to the Justice in the middle, who may not want to highlight the depth of his disagreement(s) with the majority?

Posted by Steve Vladeck on November 2, 2010 at 01:47 PM in Constitutional thoughts, Steve Vladeck | Permalink


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Steve, I have no special feelings about Verdugo. My comments are more general.

This remark of Judge Posner's criticizing the practice of concurring formally while disagreeing substantively with a majority opinion implies where the real issue lies: "[such an concurring opinion] leaves the reader uncertain whether the majority opinion or the concurring opinion should be regarded as the best predictor of how the Court would decide a similar case in the future."

There are really two separate questions: (1) What must a lower court do with a Supreme Court opinion that includes a formally full but substantively partial concurrence? And (2) what would the Supreme Court itself do if again faced with the legal issue in the future?

As most commenters seem to recognize, formalism matters here. (It's puzzling to me that you, with two federal appellate clerkships under your belt, resist this truism.)

If a Supreme Court justice wants to concur in part, she can do so. If she chooses instead to concur in full, then the majority opinion is the majority opinion, regardless of what the concurrer says in her separate opinion. Justices know this. If they want Marks to apply, they can concur in part and leave the Court with a plurality opinion instead of a majority opinion.

I cannot agree with AF that a formally full but substantively partial concurrence licenses lower courts to do something different with a majority opinion than the majority opinion itself allows. Of course, if the majority opinion can be read narrowly, then a lower court can read it narrowly, and if the concurring opinion endorses a legitimate narrow reading then the concurring opinion -- much like a law-review article that makes the concurrer's point -- might be useful. But it has no more import, as a formal matter, than would a law-review article by the concurrer.

To return to Posner's point, though, that's not to say that the concurrence might not be relevant to predicting what a future Supreme Court might do.

So a district court that gives Marks treatment to a concurrence rather than relying on a majority opinion will, and should, get reversed on appeal. But if the Supreme Court grants cert., perhaps it will change its mind.

This means that litigants who favor the concurrence's view might well want to keep litigating the issue. But they should (if lower-court judges take seriously their formal, and formalist, obligations) keep losing in lower courts until a majority of the Supreme Court formally changes its mind. Posner's point is that the formally full/substantively partial concurrence encourages this continuing litigation in a way that a majority opinion minus the concurrence might not.

Posted by: Bobo Linq | Nov 3, 2010 2:56:56 PM

Steve: It's the form/function distinction again. Because Marks doesn't formally apply to cases with majority opinions, a lower court judge who expressly followed Marks, openly disregarded the majority's reasoning, and followed the concurring opinion instead would not be correctly applying Supreme Court precedent.

What the court could do is follow the majority's opinion, but construe it narrowly so as not to contradict the concurring opinion -- even if such a narrow interpretation of the majority opinion would be unreasonable in the absence of the concurrence. This may well lead to a similar result as applying Marks. But I don't think a lower court could simply apply Marks and proceed as if the majority opinion were non-binding (or that the concurring opinion were binding.)

Posted by: AF | Nov 3, 2010 1:57:12 PM

Aron -- I basically agree with you, but doesn't your last point re: Marks beg the question, especially given the practice identified by Judge Posner?

Posted by: Steve Vladeck | Nov 3, 2010 1:23:30 PM

"Wouldn't a lower court, faced with an analytically distinct (and narrower) approach in a concurring opinion penned by a Justice whose vote was necessary to the result have every right to see that, rather than the putative majority opinion, as the controlling opinion under the so-called Marks rule?"

Steve, I believe the Marks rule only applies to cases where there is no formal majority opinion.

Posted by: AF | Nov 3, 2010 12:33:02 PM

The fact that it is formally a majority opinion means that it has to be treated, formally, as a majority opinion, but that doesn't mean that in applying the holding of the case courts are obliged to ignore the concurrence. Rather, a formally concurring opinion that contradicts the reasoning of a formally majority opinion for which the concurring justice provided the deciding vote authorizes courts to construe the majority opinion more narrowly than would otherwise be permissible.

A similar situation case is Branzburg v. Hayes, 408 U.S. 665 (1972), in which Justice Powell joined the majority opinion, which flatly rejected the existence of a reporter's privilege, but concurred saying that an "asserted claim to [reprter's] privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."

Here's what Judge Posner had to say about Branzburg and subsequent case law applying it (in McKevitt v. Pallasch, 339 F. 3d 530 (7th Cir. 2003)):

Although the Supreme Court in Branzburg v. Hayes, 408 U.S. 665 (1972), declined to recognize such a privilege, Justice Powell, whose vote was essential to the 5-4 decision rejecting the claim of privilege, stated in a concurring opinion that such a claim should be decided on a case-by-case basis by balancing the freedom of the press against the obligation to assist in criminal proceedings. Id. at 709-10, 92 S.Ct. 2646. Since the dissenting Justices would have gone further than Justice Powell in recognition of the reporter's privilege, and preferred his position to that of the majority opinion (for they said that his "enigmatic concurring opinion gives some hope of a more flexible view in the future," id. at 725, 92 S.Ct. 2646), maybe his opinion 532*532 should be taken to state the view of the majority of the Justices — though this is uncertain, because Justice Powell purported to join Justice White's "majority" opinion.

A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter's privilege, though they do not agree on its scope. See, e.g., In re Madden, 151 F.3d 125, 128-29 (3d Cir. 1998); United States v. Smith, 135 F.3d 963, 971 (5th Cir.1998); Shoen v. Shoen, 5 F.3d 1289, 1292-93 (9th Cir.1993); In re Shain, 978 F.2d 850, 852 (4th Cir.1992); United States v. LaRouche Campaign, 841 F.2d 1176, 1181-82 (1st Cir.1988); von Bulow v. von Bulow, 811 F.2d 136, 142 (2d Cir.1987); United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir.1986). A few cases refuse to recognize the privilege, at least in cases, which Branzburg was but this case is not, that involve grand jury inquiries. In re Grand Jury Proceedings, 5 F.3d 397, 402-03 (9th Cir.1993); In re Grand Jury Proceedings, 810 F.2d 580, 584-86 (6th Cir.1987). Our court has not taken sides.

Some of the cases that recognize the privilege, such as Madden, essentially ignore Branzburg, see 151 F.3d at 128; some treat the "majority" opinion in Branzburg as actually just a plurality opinion, such as Smith, see 135 F.3d at 968-69; some audaciously declare that Branzburg actually created a reporter's privilege, such as Shoen, 5 F.3d at 1292, and von Bulow v. von Bulow, supra, 811 F.2d at 142; see also cases cited in Schoen at 1292 n. 5, and Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir.1975). The approaches that these decisions take to the issue of privilege can certainly be questioned. See In re Grand Jury Proceedings, supra, 810 F.2d at 584-86.

Posted by: AF | Nov 3, 2010 12:16:40 PM

In my view, the Rehnquist opinion is a majority opinion. Kennedy formally joined it, and it was announced as an opinion of the Court.

With that said, even the Rehnquist majority opinion does not say categorically that a non-citizen has no Fourth Amendment rights outside the United States. Rather, its reasoning seems limited to individuals with no voluntary contacts with the United States -- not only non-citizens, but people who aren't part of the U.S. community of "the people" at all.

Posted by: Orin Kerr | Nov 2, 2010 7:59:22 PM

As the student who prompted this article, I would first like to state for the record we weren't fighting about the issue. . . in fact, I concur in judgment with Professor Vladeck after Kennedy's decision in Boumediene. Still, I'll try to do my part in this faux adversarial system.


Let's say the truth is definitely function and not form - the form certainly muddles the truth of the issue. When a judge, or more likely a clerk, reads the Verdugo opinion he or she has to read it very closely to pick up on this distinction. If they don't, then they end up basing their conclusions on what is, in truth, incorrect law. Thus bad law becomes precedent and circuits split on the issue. [Compare US v. Bin Laden with US v. Raven].

Then eighteen years later in Boumediene, writing for the majority, Justice Kennedy rules that there is no blanket denial of constitutional rights to non-citizens overseas. But he it does this on habeas grounds, and ignores the Fourth and Fifth Amendment issues. This is the prism through which I view the Verdugo decision, certainly on Fifth Amendment grounds, because they were dicta in Verdugo anyway. The Fourth Amendment is a littler harder for me to buy. But I have this view because I have read Boumediene, and Verdugo, and Eisenstrager multiple times with a fine toothed comb. Few people will read this article, or will read these cases as closely as we have.

In the end, it matters how Verdugo is treated in the lower courts, not what Justice Kennedy's intent was at the time. Who knows when the Supreme Court will address the issue again, and whether Justice Kennedy will even be on the court?


Full disclosure, I'm writing a my law comment on the extraterritorially of Miranda after Boumediene. So far, I've found eleven cases in seven circuits which say the Miranda rules apply, including three decided after Verdugo. So far, I've found only one case against it - US v. Raven which relied upon Verdugo.

Link to PDF of cases with descriptions and cites

Posted by: Adam Fernandez | Nov 2, 2010 6:01:06 PM

Thanks for the comments, all. Liz, I suspected such cases existed, but really appreciate the cites.

As for Bobo, I guess my question is whether you feel so adamantly in general, or just specifically w/r/t Verdugo. Wouldn't a lower court, faced with an analytically distinct (and narrower) approach in a concurring opinion penned by a Justice whose vote was necessary to the result have every right to see that, rather than the putative majority opinion, as the controlling opinion under the so-called Marks rule?

Posted by: Steve Vladeck | Nov 2, 2010 4:39:41 PM

Steve, I agree with your reading of Verdugo. Taken together with the two concurrences and one dissent, the "majority" opinion is best categorized as a plurality opinion. And, as the narrowest opinion, Justice Kennedy's concurrence arguably controls. Then, as you say, the question of whether the rest of the Fourth Amendment would apply to such searches remains open (Kennedy's concurrence makes pretty clear the Warrant clause won't apply to other extraterritorial searches). Still, as Bobo Linq points out, a number of courts have cited Verdugo in support of the proposition that the Fourth Amendment (and often the Fifth) does not apply to noncitizens abroad at all. See, e.g., United States v. Barona, 56 F.3d 1087, 1091 n.1 (9th Cir. 1995) (determining wiretaps in Belgium and Italy to be constitutional under Verdugo); United States v. Raven, 103 F. Supp. 2d 38, 40 (D. Mass. 2000) (concluding, based on Verdugo, that Supreme Court has “rejected the extraterritorial application of the Fourth and Fifth Amendments to aliens”) [These are all a bit dated, as they come from a paper I wrote in 2005 http://ssrn.com/abstract=1680078].

Posted by: Liz Sepper | Nov 2, 2010 4:36:37 PM

It doesn't answer your question, but I wanted to pass along this criticism of the practice (in the context of Kelo):

[C]asting the essential fifth vote for the “majority” opinion while also writing a separate opinion qualifying the Court’s opinion is bad practice because it leaves the reader uncertain whether the majority opinion or the concurring opinion should be regarded as the best predictor of how the Court would decide a similar case in the future. Justice Kennedy’s action is a further example of the Court’s tendency (which I remarked in connection with the Booker decision) to disregard the consequences of its decisions for the lower courts that have to apply them. If Kennedy had reservations concerning the majority opinion that he was not willing to swallow, he should have concurred in the judgment only; then the lower court judges and future litigants would know where they stood.
Richard A. Posner, A Political Court, 119 Harv. L. Rev. 31, 95 (2005).

Posted by: WPB | Nov 2, 2010 3:34:13 PM

You ask:

Isn't it possible that a concurring opinion rests on grounds that are irreconcilable with the majority's analysis, such that it's impossible to read them together, and yet the concurring justice _says_ it's a concurrence in full?

Answer: Yes, it is possible -- and it's irrelevant. The separate opinion of a justice who concurs in form but not in substance might as well be a law-review article. No lower court will rely on the concurring justice's opinion if that opinion conflicts with the majority opinion. Put another way, the concurring justice's opinion has no cash value.

Posted by: Bobo Linq | Nov 2, 2010 3:16:09 PM

Yikes. . . I hope we don't begin the practice of looking at what a separate opinion "really" says, rather than assume that when a Justice joins the majority, he really does join the majority. Otherwise, we will now need to read every separate opinion of any Justice who joins the majority, where that Justice (or group of Justices) brought the total to 5.

Posted by: whoa | Nov 2, 2010 3:01:22 PM

The distinction you're trying to draw seems to be an artificial one. What the decision primarily is is the resolution of a particular dispute. And how the case was disposed of is not in doubt.

Principles that deal with interpreting complexly split opinions are essentially attempts at codifying predictions. The question should not be whether the opinion is majority or plurality, but rather what those opinions indicate the court would have ruled had the case been slightly different. That's true whether you have majority opinions with concurrences or plurality opinions that are joined in part. Classifying opinions can be a useful tool, but it's really just an artificial way of trying to turn the art of prediction into a science.

Posted by: Andrew MacKie-Mason | Nov 2, 2010 2:30:47 PM

But I guess the larger question remains: Isn't it possible that a concurring opinion rests on grounds that are irreconcilable with the majority's analysis, such that it's impossible to read them together, and yet the concurring justice _says_ it's a concurrence in full?

Posted by: Steve Vladeck | Nov 2, 2010 2:30:23 PM

"Join" means "join fully," it doesn't mean "join partly." And "concur" means "concur," it doesn't mean "concur in the judgment." So you're "view" that Kennedy concurred in the judgment is simply mistaken.

This doesn't give any power to the reporter of decisions, nor does it give the concurring justice any particularly unusual power. In this particular case, Kennedy could have chosen to concur in the judgment. He didn't, so Rehnquist's opinion is for the Court, not for a plurality.

Posted by: Bobo Linq | Nov 2, 2010 2:21:14 PM

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