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Thursday, March 16, 2017

Blaming Dissents in Gant and Lightfoot

The Supreme Court sometimes abandons longstanding or widespread readings of its own precedents by blaming a dissenting opinion. “Our previous majority was fairly clear,” the Court effectively says, “except that the dissent in the relevant case cast a spell over readers, leading them astray.” This practice of blaming dissents is both interesting and consequential, appearing for example in Gant as well as the recent decision in Lightfoot.

Here’s the Gant majority opinion:

[O]ur opinion [in Belton] has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search. This reading may be attributable to Justice Brennan's dissent in Belton, in which he characterized the Court's holding as resting on the "fiction ... that the interior of a car is always within the immediate control of an arrestee who has recently been in the car." Under the majority's approach, he argued, "the result would presumably be the same even if [the officer] had handcuffed Belton and his companions in the patrol car" before conducting the search.

And here’s the Lightfoot majority:

True enough, the dissent thought Red Cross established a broad rule. See 505 U. S., at 271-272 (opinion of Scalia, J.) (describing Red Cross as announcing a "rule ... that any grant of a general capacity to sue with mention of federal courts will suffice to confer jurisdiction" (emphasis deleted)). The certainty of the dissent may explain the lower court decisions adopting a broader reading of Red Cross. But Red Cross itself establishes no such rule.

These passages raise complex questions about how precedent does and should operate. There are at least four different actors: (i) the precedent dissenters, (ii) the precedent majority, (iii) lower courts, and (iv) the later Court. Let’s take each in turn.

1. Are dissenting opinions reliable when it comes to the meaning of majority opinions?

At a minimum, dissents afford some useful interpretive evidence, in that they tell us what one or more talented, knowledgeable lawyers thought that the Court was saying. Yet dissenters are not exactly disinterested when it comes to reading the majority.

On the one hand, the dissenters have reason to exaggerate: painting the majority as a sweeping ruling can make it an easier target for criticism. And the dissent’s authors, justice and clerks, might just be so worked up that they get carried away.

On the other hand, dissenters frequently—even usually—have strategic reasons for erring on the side of narrowing readings, precisely to discourage broader ones. So a dissent’s broad characterization of the majority could be viewed as a statement against self-interest, stemming either from candor or a lapse of strategic self-control.

2. By considering the majority’s role, and not just the static views of the dissenters, we can view these questions somewhat more dynamically.

Precisely because dissenting opinions inevitably influence later readers, majority-opinion authors have an interest in responding to inaccurate statements in dissenting opinions—and frequently endeavor to do so. Some readers might therefore infer that the authors of majority opinions implicitly agree with unanswered statements in dissents. This inference often underlies reliance on dissents: if the dissent had said something inaccurate about the majority, wouldn’t the majority have spoken up?

But, here as elsewhere, it’s hard to infer consent. Perhaps the majority found the dissent’s characterization to be so obviously wrong as to be undeserving of a response. Or maybe the dissent’s characterization was added at the last minute, or just stayed in the circulated draft, unchanged, even after the majority believed it had made sufficient effort to clarify the issue. Some justices also seem stylistically or temperamentally averse to responding to dissents. So in any given case, it’s generally hard to do anything other than speculate.

Should we adopt a formal practice of giving a dissent’s unanswered characterizations of the majority some force in shaping our reading of the majority? Such a rule would give majorities greater reason to respond with clarity when a dissent rears its head. So overall precedential ambiguity might decline, to the relief of parties and lower courts.

But there are often benefits to precedential ambiguity, such as when greater specificity would prevent a majority from forming at all, or when the majority wants to leave itself or lower courts precedential room to experiment in the future. There is also something more than odd about effectively empowering dissents to establish precedent on topics that even the majority has not clearly addressed. This idea may even be in tension with Article III.

3. How should lower courts figure into this picture?

Given the perils of relying on dissents, one could argue for an exclusionary rule that prohibits lower courts from publishing opinions that rely on Supreme Court dissents.

Perhaps dissenting opinions are so unreliable when it comes to characterizing majority opinions, and lower courts are so unduly influenced by those dissents, that lower court decision-making would be more accurate if judges had to justify their holdings without citing or drawing inferences from the dissents.

But, of course, lower courts would still read and so know about the higher-court dissents, so the viability of this approach depends on how much judicial outcomes are linked to constraints on formal judicial reasoning.

Notably, Gant and Lightfoot do not themselves throw cold water on the idea that lower courts should consider what dissenting opinions say. In other words, Gant and Lightfoot blame the dissents, but leave open the possibility that lower courts were right—or are generally right—to view dissents as a proper source of precedential guidance.

There is a broader point here. The very idea of blaming dissents for lower court decisions suggests that dissenting jurists do in fact have a role in altering lower-court behavior and, thus, in creating de facto precedent. And the more that lower courts consider dissents, the more power the dissenting justices have.

4. What about Court’s behavior in Gant and Lightfoot?

Gant and Lightfoot were trying to justify their readings of precedent by explaining how so many judges could have arrived at contrary readings. The dissent is introduced as a kind of responsible party, even a scapegoat: if only the dissent hadn’t sown so much confusion, more judges would have adopted what Gant and Lightfoot viewed as the correct reading of precedent.

Blaming dissents is thus a means of facilitating doctrinal change. Whether viewed as a rhetorical trope or an emerging doctrinal principle, placing responsibility on dissenting opinions helps to create room for new majorities to undo the doctrinal consequences of their predecessors’ decisions. The previous decision is altered, perhaps through narrowing or extending, and contrary lower court decisions are overridden.

But the “blaming dissents” rationale is at risk of being a bit too convenient, as well as circular. Some lower court judges surely believed that they had adopted the best reading of the relevant Court precedents irrespective of any dissents. Even judges who cited the dissents might have done so simply as additional support or confirmation. Further, whether the dissents in these cases sowed confusion depends on whether the dissents were wrong—and that is the very point that Gant and Lightfoot seek to establish.

Interestingly, an effective instance of blaming dissents might make the dissenters themselves quite happy. True, being labeled as wrong is nobody’s first choice. Dissenters would much rather be vindicated not only on their view of the law but also on their reading of precedent. But neither beggars nor dissenters can be choosers. By setting themselves up to take the blame for broad readings of majority opinions, dissenters might make it more likely that the broad reading is eventually abandoned, as happened in Gant and Lightfoot. So dissenters could win some vindication if the Court eventually blames them for wrongheadedness, thereby moving the law in the dissenters’ preferred direction.

Of course, there are many situations where dissents broadly read or extend majority opinions and don’t get blamed. A plausible recent example concerns same-sex marriage: after Scalia’s Windsor dissent cast the majority as a broad ruling, lower courts promptly followed suit, often emphasizing Scalia’s statements. The Court didn’t respond by condemning lower-court reliance on dissenting opinions; in fact, the Court seemed to draw support from the lower-court decisions, as Neil Siegel has argued. But imagine if Obergefell had come out the other way—would the Court then have been tempted to blame the dissent?

Posted by Richard M. Re on March 16, 2017 at 01:35 PM | Permalink


Oops, hit post, sorry.

... Well received. Having provided the rationale the dissent provides the opening that lower courts then use to broaden the precedent to cover a new case. Eventually this case or set of cases end up back at the Court and the dissenter is now able to say "I told you this would happen." The dissenter would argue the solution is not to narrow the precedent to what it was intended to be but to argue that the original precedent must be overruled to prevent such mischief from reoccurring. The dissenter thus gets his or her way, although maybe years later, as a result of his original dissent, which planted the seed.

Posted by: Sean | Mar 20, 2017 8:44:07 AM

Isn't it possible that a strategically minded justice writes a dissent construing the majority opinion broadly for the purpose of creating a "self-fullfilling prophecy" that can later be used to overturn or narrow the opinion? If the dissenter opposes the majority ruling he or she issues a dissent that interprets the ruling broadly and then argues why it presents a "slippery slope" for other rulings that would be less

Posted by: Sean | Mar 20, 2017 8:37:52 AM

Asher: If blaming the dissent really "makes the authoring Justice's job a little easier,” as you say, then that alone is enough to show that this topic is worth thinking about. And that's apart from the issues raised by lower courts' looking to dissents etc.

Posted by: Richard | Mar 19, 2017 5:32:03 PM

"Marginal import" is right, I think. Blaming a dissent's a lame move that makes the authoring Justice's job a little easier, but that's all. Normatively - well, candor would be nice if the lower courts' reading of the narrowed precedent is best; in some cases a dissent may really be to blame (imagine if the Comcast majority had really meant the strong reading of Comcast). But to be frank, I think all this Court-centric scholarship takes you into some real minutiae at times.

Posted by: Asher Steinberg | Mar 18, 2017 12:36:34 PM

Richard, thanks for the response. Fwiw, I doub that "blaming the dissent" is ever useful or attractive. If the Court disagrees with how lower courts have read a precedent, the Court can just say so. The Court has the power to overturn the precedent as well as the power to put a novel spin on what its own precedent means. Given that, it doesn't need to blame anyone for not agreeing with its new reading of a precedent.

I'm reminded of Katz v. US, in which Stewart's opinion criticized the petitioner for misframing the issue in his cert petition. The parties had understandably assumed that the holding of the Court's most recent precedent should frame question in Katz. The majority in Katz wanted to abandon the prior language, so it lamely criticized the petitioner for "misleading" the Court in its cert petition.

Posted by: Orin Kerr | Mar 17, 2017 1:03:43 PM

Orin, I think that blaming the dissent matters for the same reasons that we usually care about the logic of precedential decisions. In Gant, at least Justice Stevens thought that it strengthened his opinion to blame the dissent. That decision might contribute to a larger pattern of rulings, as indicated by Lightfoot. And examples of blaming the dissent raise normative questions about whether it is an attractive practice, or should have a larger role in the future. You suggest that you and many others didn’t buy Stevens’s arguments in Gant. But I’m not sure which way that cuts: one might think that it’s precisely when the justices are arguing uphill that the marginal import of each rhetorical trope or factor is maximized.

Posted by: Richard | Mar 17, 2017 1:45:25 AM

I'm with Asher: I don't see what work blaming dissents actually does. As I recall Gant, Justice Stevens was just pretending that Belton was "misread," and nobody was tricked by that assertion. Given that, it's hard to see how it matters that he blamed the dissent for the claimed misreading.

Posted by: Orin Kerr | Mar 16, 2017 7:54:50 PM

This is interesting, but I don't know if I agree that blaming dissents facilitates doctrinal change. I can't imagine a situation where, if there weren't a dissent broadly reading the majority opinion in a precedent to blame, the Court or even a single Justice wouldn't narrow its precedent in just the same way it did with the conveniently blameworthy dissent. It's just not so difficult to say that some lower courts misunderstood us without having a dissent to blame for it. Surely you get just the same outcome in Lightfoot and even all the same votes if they didn't have the Red Cross dissent to kick around, right? So I really can't see this three-dimensional chess move where a dissenter overstates the breadth of the majority's holding in hopes that a later majority will be able to trim today's holding by blaming the dissenter for lower-court confusion. Usually the tactical move will be to minimize the scope of the majority's holding; I feel like I see Ginsburg doing this a lot in her dissents. One of the great success stories in narrowing dissents in recent years is Ginsburg and Breyer's joint dissent in Comcast v. Behrend; of course another is Kagan's in Genesis. Of course, some dissents of this kind are quite accurate and sincere and usefully ward off lower-court confusion; I would put Genesis and probably Comcast in that bucket. Scalia's habit of writing baleful dissents was, I think, a reflection of his honesty and disinterest in tactics, as well as his tendency for hyperbole, though I think he also believed that that sort of dissent would usually be more persuasive over the long run, as in some cases it was (Morrison). Certainly that wasn't the case in Lawrence or Windsor, and I suspect he knew that when he wrote them, or at least when he wrote in Windsor.

Posted by: Asher Steinberg | Mar 16, 2017 2:26:07 PM

I suppose another factor to consider is whether the issue involves questions of Constitutional law, statutory law or administrative rulemaking. The Supreme Court's interpretation of a statute or a rule not only may invite a response from lower courts, but also Congress, administrative agencies, or if it's a procedural rule, the Judicial Advisory Committee on Rules of Practice and Procedure.

In the area of class action law, I can think of a case where many of these players--judges (both as adjudicators and rulemakers) and Congress have reacted to Supreme Court dissents. Ginsburg's dissent in Comcast argued that the majority decision in that case did not undermine the "black letter" rule that individual damage questions barred class actions. The majority decision didn't really say much in response, and thus, the lower courts widely followed what Ginsburg said. The Advisory Committee also considered (I think) whether it should respond by clarifying the rules for issue classes and class actions more generally. Ultimately, the Supreme Court in Tyson Foods ended up adopting what Ginsburg said in her Comcast dissent on this issue. But that led Thomas to dissent saying Tyson wrongfully undermined Comcast. Now, the House has weighed in recently with a new bill (the Fairness in Class Action Litigation Act) that would bar class actions unless they involved the "same injury or scope." The sponsor of that bill (if I remember right) said he was responding, in part, to what happened in Tyson. Long story short, dissents involving rules can involve lots of players, which in turn, might shape how and why the dissent is drafted.

Side note: I suppose even in Constitutional litigation, dissents can invite responses from Congress. (Was RFRA, in part, motivated by Blackmun's dissent in Smith?)

Posted by: Adam Zimmerman | Mar 16, 2017 2:17:20 PM

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