Fragmented Opinions

When Chief Justice Roberts was nominated in 2005, there was a lot of discussion about his goal of reducing the number of 5-4 opinions.  That hasn’t worked out, but I was never sure about how much that matters.  With rare exceptions, the fact that an opinion is sharply divided is irrelevant.

Salazar v. Buono, which came down yesterday, illustrates a real problem that the Chief should work on — cases where the Court cannot produce a majority opinion at all.  That is a totally unsatisfactory result that drives attorneys, government officials, and lower court judges batty.  I wonder whether the Court should adopt a norm that if it cannot agree on a majority opinion the writ of certiorari should be dismissed as improvidently granted.  (Note that this is different from a five-person majority opinion where one member writes separately. In that case, you at least have a short at extracting an intelligible holding.)  There are instances (a case in the Court’s original jurisdiction, for example) where even a splintered decision is better than nothing, but usually that is not the case.  There’s nothing wrong with leaving the lower court opinion in place and taking up a similar issue in a subsequent case where a clear decision can be rendered.

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10 Responses

  1. Nothing wrong, that is, except leaving in place a judgment that a majority of the Court agrees is in error.

  2. In some cases, that is — if a majority votes to affirm (but on different grounds), then you wouldn’t have this problem.

  3. Gerard Magliocca says:

    Error correction should not be a priority, though I understand that some people don’t agree with that assertion.

  4. Norman Williams says:

    Fragmented decisions can be frustrating, particularly for law professors, who make their living unpacking the linguistic (and other) nuances of opinions. Yet, it seems that requiring a single majority rationale makes a fetish of opinions by viewing the opinion, rather than the judgment, as the object of the judicial process. If the Court could not have agreed on a rationale in Brown v. Bd., should the Court have not decided that case on the merits? The judgment is the law; the opinions explaining (or attacking) the judgment, while sometimes helpful (and equally oftentimes not), are secondary. Indeed, what do you think of decisions without opinions, such as summary affirmances and reversals?

  5. Gerard Magliocca says:

    I think that the Supreme Court should not issue merits decisions without opinions unless they are remanding with instructions to reconsider in light of a recent case. I shudder at what would have happened if the Court had struck down school segregation in Brown but added, “Um, we can’t tell you why this is invalid. It just is. Trust us.”

  6. Zvi says:

    Or more likely, the lower Courts will latch on to an opinion, usually the opinion concurring in the judgment, over time. For instance, take the Steel Seizure Cases and Griswold v. Connecticut. In this case too I have to think it will be Justice Alito’s opinion, but that’s purely a guess.

    But I agree that these opinions are highly problematic, and represent self-indulgence on the part of the justices, each of whom seems convinced they have something important to say. But the Court dropped seriatim opinions long ago.

  7. Norman Williams says:

    I don’t disagree that, all things considered, it would be preferable for the majority to unite on a single rationale and opinion. I disagree, however, that it is somehow a violation of the Court’s institutional role or the judicial process for the Court to issue judgments backed only by fragmented, plurality opinions. Undoubtedly, Chief Justice Warren’s ability to secure a unanimous opinion in Brown was important as a political matter, but it was not necessary as a matter of judicial process. What about United States v. Nixon? Was the Court wrong to issue its judgment ordering President Nixon to disclose the Watergate tapes?

  8. Vladimir says:

    Two comments.

    First, didn’t the Supreme Court strike down every form of segregation outside of education without explanation, with only a “see Brown” cite, saying in effect, “it’s invalid because it is; trust us”? Granted, that’s a different problem than the one we’re dealing with — too many opinions without any overlap — but it sure drove the elite law professor types of the time up the walls. See, e.g., Henry Hart, The Time Chart of the Justices, 73 Harv. L. Rev 84 (1959).

    Second, the modern rule is that we’re supposed to treat the narrowest opinion as authoritative. That means that Chief Justice Robert’s “this case is trivial, and counsel conceded it away anyway” opinion governs the day. That should have pretty much no impact on future cases. Error correction, sure, but not all that different than DIGing the case, right?

  9. TJ says:

    I think you are severely underestimating the utility of splintered opinions and overestimating the benefits of a single authoritative opinion. Some benefits of having every justice write their opinion:

    1. It avoids the appearance (and reality) of the Supreme Court as a super-legislature that dictates rules based on nothing more than “getting to five.”

    2. It forces justices to persuade the public and subsequent courts (both lower courts and ultimately a later Supreme Court) that their view is correct; not by the authority of five votes, but by the persuasiveness of their writing. The only example of that in American jurisprudence where persuasiveness has trumped the authority of five votes is Justice Jackson’s concurrence in Youngstown. Otherwise, a justice’s knowledge of the law and the persuasiveness of his reasoning really doesn’t matter–what matters is being a great politician who can whip four additional votes. That might require some legal persuasion, or it might require simple political horse-trading behind closed doors. In any event, the audience becomes far narrower (i.e. four colleagues).

    3. Following from (2), it is indirectly responsible for a selection and confirmation process that focuses far more intently on a potential justice’s political views and political ability (to round up votes from the swingers) than legal ability. If the only thing that matters is rounding up five votes, then that is where the incentives point.

    In short, the reliance on single authoritative opinions presumes the efficacy of iron-fist central planning by a commission of nine over a more diffuse and devolved decision-making process. Leaving a controversial issue unsettled with a bunch of competing opinions does create enormous frustration for lawyers and professors, but that is precisely how the common law actually evolved, and the rules that were eventually reached by consensus through this process (in contracts, tort, and property) have proven to be pretty good.

  10. Ken says:

    >>Didn’t the Supreme Court strike down every form of segregation outside of education without explanation, with only a “see Brown” cite, saying in effect, “it’s invalid because it is; trust us”? >>

    I don’t think so. Rather, I think, saying in effect, “It’s invalid because ‘separate but equal’ is not equal; we don’t intend to waste any more time and energy explaining that over and over again.”