Legal Docket: Dissents and concurrences


NICK EICHER, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 6th of August, 2018.

Good morning. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

Well, Nick, before we get too far away from the Supreme Court term that just ended, I want to talk about some interesting legal statistics.

Now, please, you’re going to have to bear with me. I need to geek out a little bit, but there’s a design here.

EICHER: Mmm. Sounds promising.

REICHARD: It is. Promise!

You know my favorite legal blog is the SCOTUSblog. SCOTUS for Supreme Court of the United States. The SCOTUSblog has lawyers, professors, and law students writing about all things Supreme Court. I’d say a pretty broad-minded group over there, and they post frequently about us, so I appreciate that.

But one of the writers at SCOTUSblog compiled some stats about which justices decided what, how fast rulings come down, which circuits SCOTUS overturned the most, that kind of thing.

EICHER: Do I get non-lawyer geek status, then? Because these are the kinds of statistics that interest me. And I’ve looked at your notes and I know, for instance, you have some details on which justice asked the most questions during oral arguments this past term.

REICHARD: Your eyesight isn’t failing. It’s Justice Sonia Sotomayor. She’s the one who asked the most questions. And, I’ll tell you, just from reviewing all the arguments again this year, I kind of suspected that. But what I really noticed is how often she sounded irritated in her questioning, so I pulled some representative sound. So listen to this term’s most inquisitive justice, Justice Sotomayor, in a case about whether American Express violated competitive practice rules.

SOTOMAYOR: You’re making my choice for me. You’re not giving me the choice, and that’s what price competition is about. My choice. Not your choice about what’s more valuable to me.

EICHER: Yes, I can hear it. But if you’d asked me, I’d have said Justice Stephen Breyer. He’s got a little Woody-Allen-goes-to-law-school edge to him.

You’ve got some Justice Breyer tape to share.

REICHARD: I do! This from a case where the question is what does it mean when the majority five justices in a split ruling can’t agree on the reasoning behind the ruling. Listen to Justice Breyer:

BREYER: I think law is part art and part science. There are no absolute rules. Marbury v. Madison! Two-thirds of it is not necessary to the conclusion. So should we pay no attention to it? Ha! Of course, we pay attention to it. And then I can cite five—but I won’t—where it may be that on this matter there was a unanimous court, but nobody believes it. So if you ask me to write something better than Marks, except what I just said, which will help nobody. [laughter]

REICHARD: Haha. Alright, if you listen regularly, I think you probably already know the answer to this one: Which justice asked the least number of questions?

EICHER: I think I certainly qualify as regular listener, so I’m going with Justice Thomas. Clarence Thomas. Because he’s the one I never hear in any of your soundbites!

REICHARD: Give that man a prize!

Justice Thomas last spoke up in 2016. It was a case involving domestic violence and gun rights.

And he’d been silent for a whole decade prior to that!  

And let me just say: I regret that about Justice Thomas because he does have a beautiful baritone voice.

Plus I only have eight voices to choose from when piecing together stories for Legal Docket.

So, ah, Justice Thomas, if you’re listening: may it please the court, sir, I’d love to hear you much more regularly.

Anyway, guess which justice was most likely to be in the majority opinion?

EICHER: Mmm, going to go with the swing justice. Justice Anthony Kennedy, recently retired Justice Kennedy. Whichever side he votes with wins. So, Kennedy. Final answer.

REICHARD: Educated guesses here. I’ll go traditional right-right for agreement and left-right for disagreement. So Thomas and Justice Samuel Alito for agreement and stay with Alito and pair him against Ginsburg, Justice Ruth Bader Ginsburg for disagreement.That was kind of a trick question. You’d think it’d be Kennedy. But it was actually the chief justice, Justice John Roberts.

He was in the majority 93 percent of the time.

Justice Kennedy was a very close second at 91 percent.

I’ll go to the other end of the spectrum and tell you the least likely to be in the majority, and that was Justice Sonia Sotomayor. She was part of the majority only 68 percent of the time.

Next question—well, two questions, actually: Which justices agreed with each other the most? And which disagreed the most?

EICHER: Educated guesses here. I’ll go traditional right-right for agreement and left-right for disagreement. So Thomas and Justice Samuel Alito for agreement and stay with Alito and pair him against Ginsburg, Justice Ruth Bader Ginsburg for disagreement.

REICHARD: Good guesses again, and wrong again!

Agreement was left-left. Sotomayor and Ginsburg most agreeable with each other, 95 percent agreeing with each other.

And on disagreement, your instinct was correct to go left-right, but it was Sotomayor versus Alito.

EICHER: We’ve talked about unanimous decisions and how Chief Justice Roberts seems so often to drive for 9-0 decisions, but I wanted you to talk about unanimous rulings that were singular opinions, no concurring opinion, where a justice would agree with the result and disagree with the reasoning slightly. Just one opinion that they all sign onto.

That’s the narrowest way to measure agreement, right?

REICHARD: It is, and you’re right about the unanimous rulings. Quite a few of them. But the scenario of unanimity and no concurrences, that happened in only 26 percent of the cases. In other words, just over 1 in 4 cases found the justices in full agreement in outcome and reasoning, and nobody wrote a dissent or a concurrence.

EICHER: Good stuff. And we’ll put a link on the website to the SCOTUSblog statistics page, if you want to drill into it.

But Mary, you were prepared to address a question we’d received from a listener, actually several had the same question: Why do the justices even bother with writing concurrences and dissents? Surely, it’s not just to give these justices an avenue for further expression.

What’s the practical reason for them?

REICHARD: Well, you’re right in putting the question like that, because there are practical reasons.

Let me state the obvious here: Supreme Court justices are just nine people who have their own ideas and backgrounds — and their own philosophies about the purpose of the court system.

I’ll mention one of the most fiery dissents I’ve ever read. That’s Justice Antonin Scalia’s dissent in Lawrence v. Texas, from 2003. That was the case that threw out laws against sodomy, 6 to 3. In that case, Justice Scalia accurately predicted what would eventually come to pass: by throwing those laws out, that cleared a path to redefine marriage for the first time to include people of the same sex. He thought the court threw out legal principles and logic to arrive at that decision.

Scalia would be proven right a dozen years later. And I don’t think Justice Scalia gets sufficient credit for his prescience.

So, here’s one practical purpose of a dissent or concurrence, and that’s to point lawyers in future cases to arguments they might be able to use to change minds later on.

EICHER: And let’s stay on that: Maybe you should distinguish the two?

REICHARD: Sure. A dissent is disagreement with the majority opinion. Dissenting opinions don’t create a binding precedent. They don’t become part of case law. Dissents reject both the outcome of the majority opinion as well as the reasoning used to get there.

A concurrence means a justice agrees with the decision of the majority, but that justice has different or additional reasons for the basis of that decision. Concurrences aren’t quite so useful for lawyers. If a particular reasoning doesn’t get the majority, those opinions aren’t binding precedent.

EICHER: That’s helpful. Let’s wrap up now with the interview you have: with a Hillsdale College professor who teaches politics and constitutional law. Professor Adam Carrington.

Mary, set that up.

REICHARD: Yes, professor Carrington is a non-lawyer, so he didn’t veer into the legal weeds. I asked him to take apart a ruling this past term in which Justice Neil Gorsuch issued the lone dissent. He disagreed with both the outcome and the reasoning in a contract case.

You may remember when we covered this case, Sven versus Melin.

That’s the one where a man named his wife as his primary beneficiary on his life-insurance policy. But before he died, the couple divorced. And under contract law, she should have received the insurance money.

But, here’s the twist: Minnesota passed a law after this particular insurance policy was signed that automatically takes the ex off the policy.

Let’s listen to part of my conversation with Professor Carrington, who thinks Justice Gorsuch’s dissent may eventually win out.

CARRINGTON: There is a clause in the Constitution called the Contract Clause which says that states can’t impair the obligation of a contract. And the government stepped in and said even though that’s the agreement, we’re voiding it, basically. …And so that’s why Gorsuch was saying we need to limit much more the havoc the state can reek here and a limit to what they can do to only certain things.

REICHARD: And the concept of contracts really goes further than even that, doesn’t it?

CARRINGTON: Sure and I’ll actually give, I just taught a story on the French thinker Montascue and he was very influential in the American founding, he compares despotisms to what he calls moderate governments. And one thing he says about despotisms is because no people have their life or their property respected, they don’t grow anything. They don’t save anything. They don’t, in many instances, even do anything. Why? Because there’s no security. Why save? Why invest? Why work hard when any moment it could be taken away from you?

REICHARD: And back to Justice Gorsuch’s dissent in the insurance policy case now. How might his dissent in that case be useful down the line? And can you cite an example from the past?

CARRINGTON: We see this all the time. One of the most famous examples of that happening is Justice John Marshall Harlan’s dissent in Plessy v. Ferguson. And that was an 8-1 decision. He lost 8-1 saying that separate but equal segregation publicly done by the government—he said those were wrong, and 8-1 he lost. Eight justices said it was right. And now his opinion is the majority opinion. And it took him 60 years to be vindicated. So, there’s always a chance that if you write a dissent it establishes—it lays a seed that may one day grow into a majority opinion.

REICHARD: And there you go: that’s how and why dissents and concurrences can change everything down the line.

And that’s this week’s Legal Docket. 


(AP Photo/J. Scott Applewhite) In this April 4, 2017 photo, the Supreme Court Building is seen in Washington. 

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