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Monday, March 14, 2022

Did US v Zubaydah Create Precedent?

The recent decision in US v. Zubaydah overtly implicated important matters like torture and state secrets. But it also raises an interesting, possibly consequential question regarding the relationship between judgments and precedents. 

In brief, the case involved a request for discovery relating to the alleged torture of Zubaydah while held in a so-called “black site.” The Court denied the discovery request in what looks like a normal majority decision. Most of Justice Breyer’s opinion was joined by Roberts, Kavanaugh, Barrett, and Kagan and so was labeled the “Opinion of the Court.” Yet Kagan did not join the judgment of the Court. Whereas the majority reversed and remanded with instructions for dismissal, Kagan would have remanded for further proceedings. 

But wait—the Opinion of the Court also has a majority on the disposition or judgment. Without Kagan’s vote, how was that possible? 

The answer is that Justices Alito and Thomas concurred in part and concurred in the judgment. Basically, the only part of the Breyer opinion that they joined was the statement of the proper disposition below. Because they supported a far more pro-government test, Alito and Thomas didn’t join any significant part of the Breyer opinion’s reasoning. 

The result is very strange. There are five votes for certain reasoning. And there are six votes for the disposition. But those votes are only partially overlapping. As a result, there is no five-justice group that supports both the Court’s opinion and its judgment.

This weird situation raises a pretty basic question: what is an Opinion of the Court, and why is it treated as precedential? A few different answers spring to mind. 

First, the Opinion of the Court could be whatever published text gets five joins. The fact of judicial endorsement, even in the absence of any deeper agreement, might be enough to create precedent. So whatever is marked as the “Opinion of the Court” just is. The main virtue of this approach is its clarity: it lets lawyers know right away what’s precedential and also gives the justices a straightforward way to offer whatever guidance they desire. 

Second, the Opinion of the Court might have to be the reasoning behind a particular, authoritative judicial action—a judgment. The Court, after all, isn’t a legislature and, traditionally, its legitimacy springs from the resolution of a party-based dispute. So a link to the judgment could be critical to explaining why the Court’s “Opinion” is legally relevant. On this view, there isn’t actually a precedential majority opinion in Zubaydah.

Third, maybe the Opinion of the Court represents the practically consequential, reasoned agreement of most justices. Several pragmatic reasons support this sort of approach. For instance, majority agreement as to actual case outcomes might tend to be especially accurate, wise, and/or predictive of future judicial behavior. By comparison, reasoning divorced from any outcome may be unreliably carefree, and an outcome supported only by conflicted reasoning may seem incoherent. On this last approach, any precedent in Zubaydah would be diminished, if not negated, by Kagan’s inability to agree on what comes next. 

In one sense, these theoretically inflected options are academic. But, in another sense, they’re acutely practical: when called upon to apply Zubaydah, will lower courts, and the Court itself, eventually choose among these options, or even consider them?

Posted by Richard M. Re on March 14, 2022 at 11:02 AM | Permalink


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Posted by: Adam Dever | Mar 15, 2022 8:34:28 AM

Yeah, Asher, I agree that the number of votes isn't legally relevant under Marks. I meant to point that out for the Marks skeptics - namely, where, as here, the narrower position also has more votes, it is less incongruous to treat as precedent than the cases where the narrowest position is a one-justice opinion.

Posted by: Hash | Mar 14, 2022 9:12:43 PM

I just want to register a quibble with Hash's implication that an opinion's having more votes is in any way relevant to Marks, but other than that I think I agree with his comment.

Posted by: Asher Steinberg | Mar 14, 2022 8:40:00 PM

Richard, I think you overstate the degree to which there's a lack of clear precedent established by Zubaydah.

Namely, the same five Justices (Breyer, Roberts, Kavanaugh, Barrett, *and* Kagan) joined *both* Part II of the opinion (except the FOIA digression in II-B-2) *and the part* of the judgment that rested on Part II -- i.e., the reversal of CA9's judgment that had rejected privilege for certain materials and remanded for further proceedings. So it seems to me that Part II is unquestionably precedent because both opinion and the corresponding aspect of the judgment have the same majority vote of five.

You are correct, however, that a further aspect of the judgment is not supported by a single opinion having five votes. Namely, although six justices voted to reverse CA9 outright and direct the dismissal of the discovery request, they diverged in their rationales: four of them (Breyer, Roberts, Kavanaugh, and Barrett) relied on the rationale in Part III of Breyer's opinion, while two of them (Thomas, Alito) relied on the rationale in Thomas's opinion. (Kagan, of course, dissented from that aspect of the judgment, as she would have allowed further proceedings on remand.) So it is only the scope of proceedings on remand, not the vacatur of CA9's original judgment, that lacks a clear majority. And on that question, it seems like a pretty ordinary Marks analysis -- Breyer's opinion has both more votes and a narrower rationale than Thomas's opinion. So if you buy Marks, Part III is precedent; if not, then there's no precedent for that aspect of the judgment.

But the status of Part III should not detract from the key point, which is that Part II is unquestionably precedent given the five votes supporting both that part of the opinion *and* the corresponding aspect of the judgment.

Posted by: Hash | Mar 14, 2022 4:51:30 PM

Errata: replace "a majority" with "controlling precedent" in that 1st sentence, sorry.

Posted by: Orin Kerr | Mar 14, 2022 4:32:39 PM

I would think this is always an issue with decisionmaking on a multi-member court. On a Court with 9 Justices, why should 5 be enough to make a majority? Why not 6, 7, 8, or all 9? How can there be an "opinion of the Court" if there are members of the Court who disagree with it? For that matter, how can we treat an opinion as one of the entire Court when we know there are members who have agreed to join the opinion but don't really agree with it, or wouldn't phrase a particular point the particular way?

It seems to me that, in the end, Supreme Court opinions are an exercise of power, and we need conventions for how to say what power is exercised when members of the Court disagree. The key questions should be if the conventions are sensible and workable ones, I think.

Posted by: Orin Kerr | Mar 14, 2022 4:32:00 PM

SCOTUS a few years back avoided clarifying Marks.

Will they continue to avoid it, giving them more discretion on what their opinions will "mean"? I'm inclined to think so.

Posted by: Joe | Mar 14, 2022 1:09:39 PM

I agree there isn't a precedential majority opinion, but the Marks problem here, like most Marks problems, seems really easy!

Posted by: Asher Steinberg | Mar 14, 2022 11:43:57 AM

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