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Monday, June 12, 2017

SCOTUS Symposium: Gorsuch's first opinion

My tentative prediction that Justice Gorsuch would write Perry v. MSPB was dealt a non-fatal blow today when Gorsuch wrote Henson v. Santander, a case involving the scope of the Fair Debt Collections Practice Act. As per tradition, it was a short (11 pages), easy, unanimous decision. Gorsuch may still write Perry--he almost certainly will have multiple opinions from the fourteen-case April sitting. But the chances went down a bit.

[Update on further consideration: During Perry arguments, Gorsuch seemed to question Kloeckner v. Solis, a unanimous 2012 decision (authored by Justice Kagan) holding that some MSPB decisions should be challenged in district court. Might he have convinced four Justices to overrule Kloeckner? Or at least to reject its application to a slightly different context? And might the Court be divided on the point, triggering a dissent from Kagan? If so, it might explain why Henson came out first--not only because it got done more quickly because he did not have to await a dissent, but because the practice is to release the easy, unanimous case first.]

Posted by Howard Wasserman on June 12, 2017 at 11:02 AM in 2018 End of Term, Civil Procedure, Howard Wasserman | Permalink


On Perry, my impression of the argument (which I even listened to) was that Gorsuch was the only person with any interest whatsoever in revisiting Kloeckner, that not only Kagan but also Alito were distinctly disinterested, and that his arguments for doing so were far from compelling enough to pick up a bunch of votes in conference or later. Statutory stare decisis is especially strong, and I sort of doubt that the Court has overruled a unanimous opinion about anything a few years after issuing it, or that the Court has ever overruled an opinion about anything without the parties asking them to (recall that Gorsuch was so interested in overruling Kloeckner sua sponte and the parties so disinterested that he put the government, which lost Kloeckner, in the awkward position of defending Kloeckner). I would give you 1:50,000 odds on Kloeckner's actually being overruled, and think the only interesting question is whether he writes a dissent, which I guess Thomas could conceivably join. I don't think there's any way he gets the opinion in Perry, even if he doesn't dissent, because his treatment of Kloeckner would be too begrudging. Since Kagan has yet to write any of the 9 opinions remaining for April, I think there's a pretty good chance that she gets Perry.

It isn't, also, right that Gorsuch will almost certainly have multiple opinions from April; in theory, five out of 9 Justices should have 2, and 4 should have 1, so it's more like a 50/50 chance. So far, 5 Justices have one.

Posted by: Asher Steinberg | Jun 12, 2017 3:37:44 PM

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