Remedies 101

Based on the comments coming out of this morning’s oral argument in Perry, it appears that there are only two possible outcomes:

1.  Petitioners have no standing.  The Ninth Circuit opinion is vacated.

2.  The writ of certiorari is dismissed as improvidently granted.  The Ninth Circuit opinion stands.

Now here’s my question.  Can a concurring opinion that does the latter count as a “controlling opinion” of the Court for purposes of ascertaining the holding?  I guess it does, though arguably it does not because it is not really an opinion at all.  Any precedent on that?

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3 Responses

  1. AF says:

    Well, under Marks the narrowest concurring opinion is controlling “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices.” Dismissing a case as improvidently granted is not “deciding a case.” So I would think that there wouldn’t be any controlling opinion.

  2. mls says:

    I would suggest that you listen to the argument and see if you still think those are only possible outcomes. What seemed to emerge most clearly was that no one (with the possible exception of Justice Ginsberg) seemed to think that the SG’s argument (ie, a ruling that applied only to California and other states that recognize civil unions) makes any sense. Moreover, none of the liberal justices except for Ginsberg seemed entirely comfortable with a broad 50-state ruling either. Standing was a closer question, but I did not get the impression that the justices were particularly impressed with that argument either.

    Dismissal as improvidently granted may be the leading contender, but reversal is certainly a strong possibility (at least as far as one can tell from the argument). If there were any jurisprudential basis for it, one might think the Court would uphold Prop 8 but say that if later experience confirms that SSM has no ill effects, the issue can be revisited.

  3. Ira Matetsky says:

    The closest thing to this situation may be Board of Education, Island Trees School District v. Pico, 457 U.S. 853 (1982). See footnote 1 of Justice Rehnquist’s dissenting opinion, criticizing Justice White’s opinion concurring in the judgment.

    There were also a number of FELA cases in the 1950s in which Justice Frankfurter voted to dismiss as improvidently granted and refused to vote on the merits, but I don’t recall whether these votes ever affected a result.