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Monday, April 20, 2020

Justice Powell's Separate Opinions

Today in Ramos v. Louisiana, the Supreme Court overruled Apodaca v. Oregon and held that the Sixth Amendment, applied to the states by the Fourteenth, requires unanimous jury verdicts in criminal cases. I agree with this decision for several reasons, but that's not the subject of this post.

One dispute in today's ruling was whether Justice Powell's concurring opinion in Apodaca, which has been treated as stating the controlling rule of the case, was binding precedent. Three Justices concluded that it was not because the views of one Justice, they say, cannot bind the Court. Six Justices said that the Powell concurrence was binding precedent, although three of them decided that this precedent should be overruled.

This led me to think about the most famous of Justice Powell's separate opinions--his concurrence in Bakke. What did the Court say about that in Grutter? Here is the relevant passage:

We do not find it necessary to decide whether Justice Powell’s opinion is binding under Marks. It does not seem “useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it.” Nichols v. United States, supra, at 745—746. More important, for the reasons set out below, today we endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.

One lesson is that the Court should strive to avoid plurality opinions that are joined by separate concurrences, as they are confusing. Another is that they really need to revisit Marks, especially in light of judicial and scholarly criticism of that case. It was confusing in Grutter and it's confusing here.

Posted by Gerard Magliocca on April 20, 2020 at 08:16 PM | Permalink

Comments

I've corrected the post.

Posted by: Gerard | Apr 21, 2020 7:41:13 AM

By the way, the ruling can be reached here:

https://www.supremecourt.gov/opinions/19pdf/18-5924_n6io.pdf

Good summary in "Constitutional Law Prof Blog" here:

https://lawprofessors.typepad.com/conlaw/2020/04/scotus-rules-sixth-amendment-right-to-unanimous-jury-verdict-applies-to-states.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+typepad%2FgBWJ+%28Constitutional+Law+Prof+Blog%29

Posted by: El roam | Apr 21, 2020 6:24:30 AM

By the way, the ruling can be reached here:

https://www.supremecourt.gov/opinions/19pdf/18-5924_n6io.pdf

Good summary in "Constitutional Law Prof Blog" here:

https://lawprofessors.typepad.com/conlaw/2020/04/scotus-rules-sixth-amendment-right-to-unanimous-jury-verdict-applies-to-states.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+typepad%2FgBWJ+%28Constitutional+Law+Prof+Blog%29

Posted by: El roam | Apr 21, 2020 6:24:28 AM

Not one single Justice said that Powell's opinion was precedent *under Marks.* The dissent and Kavanaugh specifically say it's not binding *under Marks,* that indeed it's not binding period, but that Apodaca's result -- which does look a lot like his opinion, but is to be distinguished from, among other things, the reasoning of his opinion -- is binding, and not under Marks. These are really important distinctions.

Posted by: Asher Steinberg | Apr 20, 2020 10:32:18 PM

There should be an official statement in fractured opinions clarifying just what a majority of the Supreme Court has agreed upon.

Posted by: Joe | Apr 20, 2020 8:22:09 PM

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