Thursday, June 28, 2007

Plurality Opinions

The lead opinion in today's school desegregation cases only got four votes. Since a fifth justice agreed in the result -- invalidation of the school district's plans -- but not the reasoning, that lead opinion is a "plurality opinion," and everyone who wants to figure out where the law stands has a lot of sorting out to do.

This seemed like a good occasion to read up a little on plurality opinions and (why not?) share with you.

  • Mark Alan Thurmon, Note, When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions, 42 Duke L.J. 419 (1992). Criticizes the rule in Marks v. United States, 430 U.S. 188 (1977), which says to take as precedent the narrowest grounds that would justify the result the majority agreed on. Argues for a hybrid approach.

  • Note, Plurality Decisions and Judicial Decisionmaking, 94 Harv. L. Rev. 1127 (1981). Argues that the increase in plurality decisions beginning during the Warren Court is attributable to "substantive reasoning" -- reasoning from substantive values, in contrast to legal formalism. Suggests instead use of process-based arguments.

  • Adam S. Hochschild, Note, The Modern Problem of Supreme Court Plurality Decision: Interpretation in Historical Perspective, 4 Wash. U.J.L. & Pol'y 261 (2000). Traces the history of Supreme Court decisions from the Jay Court, when justices each delivered an opinion one after the other ("seriatim"). Argues that the Court should go back to its role before Chief Justice Marshall, who began the practice of consolidating opinions and delivering one for the court. (Somehow I don't think it likely the Court would turn the clock back that far.)

  • I returned to a speech Justice Ginsburg gave at the UW when she was a circuit judge: Ruth Bader Ginsburg, Remarks on Writing Separately, 65 Wash. L. Rev. 133 (1990). Positions the U.S. practice (most appellate decisions are unanimous but judges often write separately) between the British practice (decisions delivered seriatim -- except in criminal appeals) and the European civil law practice (unanimous decisions with little emphasis on the identity of the judge). Interesting discussions of reasons to write separately and to refrain from writing separately even when one disagrees with the majority.

  • Am.Jur. 2d spends a lot less ink on the question:
    If a majority of the court agreed on a decision in the case, but less than a majority could agree on the reasoning for that decision, the decision has no stare decisis effect.[FN5] A plurality opinion is said not to be a binding precedent,[FN6] or, by a related view, to be nonbinding, but of limited precedential value as to the holding but not as to the rationale.[FN7]
    20 Am.Jur. 2d Courts sec. 138
Clear answers? I'm afraid not. But perhaps these references will be helpful.

Photo from Supreme Court website.

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