Wednesday, June 26, 2019

The Supreme Court Should Clean Up How Justices Are Noted as Joining Parts of Opinions

by Michael C. Dorf

In today's ruling in Kisor v. Wilke, Justice Kagan writes in part for the full Court and partly for a plurality. The case rejects the proposal to overrule, and then goes on to clarify, the doctrine known as Auer deference, under which courts give some deference to agency interpretations of their own ambiguous regulations. One key point is that such deference applies only to genuinely ambiguous regulations. And there are some. As Justice Kagan writes:
For various reasons, regulations may be genuinely ambiguous. They may not directly or clearly address every issue; when applied to some fact patterns, they may prove susceptible to more than one reasonable reading. Sometimes, this sort of ambiguity arises from careless drafting—the use of a dangling modifier, an awkward word, an opaque construction. But often, ambiguity reflects the well-known limits of expression or knowledge.
There is an irony lurking here, because Justice Kagan's own opinion--or at least the way the Court Reporter describes it--is ambiguous in a way that is unimportant here but could be important in other cases. It is unclear whether the first paragraph of her opinion speaks for her alone, for the full Court, or for the plurality. This is not even the first time in the past week that a SCOTUS opinion contained such an ambiguity. Consider this blog post a plea to the justices and the Reporter of Decisions (that's right, I'm talking to you Christine Luck Fallon!) to clean up this practice. It's a small, picky point, I cheerily admit, but one that could cause mischief in the future.

In my blog post on Monday, I casually asserted that Justice Gorsuch concurred in most of Justice Thomas's dissent in Flowers v. Mississippi, but not in what I called a dubious claim that Justice Thomas made in the introductory section of the dissent. My basis for that assertion was that the Reporter captions Justice Thomas's dissent as follows: "JUSTICE THOMAS, with whom JUSTICE GORSUCH joins as to Parts I, II, and III, dissenting." The dissent consists of six principal parts: An unnumbered introduction; Parts labeled I through IV, containing sub-Parts; and a concluding paragraph set off from Part IV with three centered asterisks. I assumed that by joining Parts I, II, and III, Justice Gorsuch was not joining the introduction, Part IV, or the conclusion.

Shortly after I published my post, I received an email from Prof Josh Blackman asking whether I was sure about what Justice Gorsuch joined, and of course I was not.  I emailed a list of constitutional law professors asking whether anyone knew of any clear convention. Many interesting theories were floated, but no one could identify a consistent practice. Sometimes a justice will be listed as joining "all but Part X" of some opinion, which is clear, but other times a justice will be listed as joining in some but not all numbered parts of an opinion, leaving unclear whether the justice means to join the unnumbered part or parts.

If an unnumbered part of an opinion, concurrence, or dissent contains a controversial statement, there is a plausible basis for thinking that a justice who joined part but not all of that opinion using the ambiguous formulation intended not to join the unnumbered part. That's what I thought was going on in Flowers, where Justice Thomas's introductory paragraphs included a dubious factual claim. As Prof Blackman noted in a Twitter thread yesterday, that's also the only plausible account of why Justice Scalia did not appear to join the unnumbered introductory and concluding parts of Justice Thomas's dissent in Grutter v. Bollinger. Justice Scalia joined Parts I-VII, which were the only numbered parts, so he would have been listed as joining the entire dissent were he not distancing himself from the unnumbered parts. And that makes sense: the unnumbered parts sound in a kind of conservative black nationalism that Justice Thomas espouses but that Justice Scalia did not.

But it's hard to believe that in Kisor no one joined Justice Kagan's introductory paragraph. Yet that's the implication of the language that appears in the slip opinion. It prefaces her opinion as follows: "JUSTICE KAGAN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, III–B, and IV, and an opinion with respect to Parts II–A and III–A, in which JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join." When you add it up, that means that Chief Justice Roberts joined the parts listed, while Justices Ginsburg, Breyer, and Sotomayor joined Justice Kagan's entire opinion except for the introductory paragraph.

That can't be right, however. For one thing, there is nothing in that opening paragraph to which it appears that any of the justices who joined all of the rest of Justice Kagan's opinion would likely have objected. For another, the header on the page where the introductory paragraph (and only the introductory paragraph) appears reads "Opinion of the Court," whereas the header on the pages containing parts that CJ Roberts did not join says "Opinion of Kagan, J."

So I conclude that the Court's practice is inconsistent. In Grutter, inclusion of numbered parts implies exclusion of unnumbered parts. In Kisor, inclusion of numbered parts does not imply exclusion of unnumbered parts. And in Flowers we don't know what inference to draw.

By now readers might be thinking this is unimportant--and in the cases I have highlighted it might well be. However, given the Court's tendency to fracture, it will sometimes be crucial to count up who voted for what propositions. Knowing how many justices voted for each numbered and unnumbered part of an opinion, concurrence, or dissent will then be important.

Accordingly, I have a proposal and a backup proposal.

(1) Proposal for the justices: Number all parts of an opinion, concurrence, or dissent. This will completely solve the problem.

(2) Proposal for the Reporter of Decisions in case one or more justices do not accept my first proposal: Clearly indicate whether a justice who joins only part of a colleague's opinion, concurrence, or dissent does or does not join unnumbered as well as numbered parts. In general, "all but" language will be clearer than leaving readers to draw inclusio unius inferences.

For example, the Kisor opinion could be introduced as follows:

"JUSTICE KAGAN announced the judgment of the Court and delivered the opinion of the Court with respect to all but Parts II–A and III–A, in which THE CHIEF JUSTICE, who joins the remainder, does not join, but in which JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join."

If Justice Gorsuch meant to join the introduction to the Thomas dissent in Flowers, you could introduce it as follows:

"JUSTICE THOMAS, with whom JUSTICE GORSUCH joins as to all but Part IV, dissenting."

If Justice Gorsuch did not mean to join the introduction, you could write:

"JUSTICE THOMAS, with whom JUSTICE GORSUCH joins as to Parts I, II, and III, but not the the unnumbered introduction or Part IV, dissenting."

These formulations are wordy, which is why it would be better if the justices adopt proposal (1), but if they don't, wordiness is better than ambiguity.

You're welcome!