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PaperclipPerfector  11mo ago (text post)   26074 thread views

Culture War Roundup for the week of December 4, 2023

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I will guess that Roberts will guide a 5-4 or 6-3 majority that carves out a narrow decision that prevents expansion of taxation powers in the most egregious fashion while not rolling much back. Gorsuch may well pen a concurrence that's much more strident and Thomas may join him with a "yeah, and also we should burn all this shit down" opinion.

Is there anything that can be done to prevent such perfidy from the Chief Justice? Is it possible that we have six votes that these people don't owe taxes, but only Kavanaugh and Roberts in the narrow decision while still writing for the majority? I'll admit I don't know the specifics of determining opinions and which opinions are legally relevant and which are just eloquent essays.

While I am not an expert and am under the impression that this is all determined by tradition rather than statute, my impression is that the answer with the current system is that Roberts just has complete (and formally legitimate) power to select the author of the controlling opinion:

Despite the chief justice's elevated stature, their vote carries the same legal weight as the vote of each associate justice. Additionally, they have no legal authority to overrule the verdicts or interpretations of the other eight judges or tamper with them.[8] The task of assigning who shall write the opinion for the majority falls to the most senior justice in the majority. Thus, when the chief justice is in the majority, they always assign the opinion.[10] Early in his tenure, Chief Justice John Marshall insisted upon holdings which the justices could unanimously back as a means to establish and build the court's national prestige. In doing so, Marshall would often write the opinions himself and actively discouraged dissenting opinions. Associate Justice William Johnson eventually persuaded Marshall and the rest of the court to adopt its present practice: one justice writes an opinion for the majority, and the rest are free to write their own separate opinions or not, whether concurring or dissenting.[11]

Given the fragile nature of Supreme Court composition, this may not even be a bad thing. I personally find it incredibly frustrating that we wind up with rulings that expound on various implausible theories for why only the tiniest change is legitimate, but I acknowledge that an aggressive handling of such matters could lead to court packing or an outright Constitutional crisis. Roberts apparently evincing cowardice may well reflect him being unwilling to throw away long-run advancement of his preferences for the sake of short-run correctness.

So, the members of the Court vote at conference, and the senior member of the majority side gets to assign the opinion (Roberts, as Chief, automatically has seniority, which is relevant if he's in the majority). The justice so assigned then writes an opinion, and so does any other justice that wishes to. Those opinions are circulated, and each other justice signs on to whichever opinion they choose, in whole or in part. Often, these opinions--especially the assigned-majority opinion--go through multiple drafts, which generally affect how much the other justices are willing to endorse. Once the process works its way out, you get final drafts of the various opinions, each with a holding (A wins/B wins) on the outcome of the case, and with the full or partial endorsements of the other justices.

After all of this is done, you can evaluate which side won, and which opinion holds the authority of the Court. If a majority of the participating members of the Court vote that side A wins, then that side wins. If there's a tie (possible with recusals or other absent votes), then the lower court decision stands. In terms of reasoning that holds precedential effect, look for any section in any opinion that is endorsed by a majority of the Court voting in the case. In particularly split cases, there may not be a reasoning that commands a majority at all, in which case the precedent is "side A wins, no specific reasoning controls."

Hypothetical: a case is heard, and at conference the vote is 6-3, with the three liberal women in the minority. Roberts assigns the opinion to himself. Following the drafting process, the Chief's opinion (A wins) is joined by Kavanaugh; Sotomayor writes for herself, Kagan, and Jackson that B should win; and Gorsuch writes for himself, Thomas, Alito, and Barrett that A wins, but on a different rationale than Roberts. In this case, A wins; there is no controlling rationale; but lower courts would give the most weight to Gorsuch's opinion as it has the most support, even if it isn't binding precedent on them.

The justices usually try to make sure that the hypothetical above doesn't happen, because it's not very useful guidance to the lower courts. It can happen, though, if the split between Roberts/Kavanaugh and Gorsuch et al. is sharp enough. In most cases, you'd at least get (for instance) Kavanaugh endorsing Section IIIA of Gorsuch's opinion, in which case you'd read "GORSUCH delivers the opinion of the Court as to Section IIIA, joined by THOMAS, ALITO, KAVANAUGH, and BARRETT, and an opinion as to sections I, II, IIIB, IIIC, and IV, joined by THOMAS, ALITO, and BARRETT...etc." The key phrasing is "the opinion of the Court" vs. "an opinion."

It's true that all of the detail above is the product of centuries of tradition, but the core is rock solid--the Court is a body made of equal-voting members. A simple majority speaks for the whole. If the Chief cannot get four supporters, he's just another guy with an opinion, but if any member of the Court gets four others to agree, they speak for the Court itself.

(Roberts is rather famous for his Obamacare decision in which zero members of the Court joined his opinion in full. Four members joined part of it, and the other four joined the rest, so his full opinion had five votes in each part, but they weren't the same five votes.)

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