The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court released three opinions today. Two of them were unanimous in the judgment. One, however—Bank Markazi v. Peterson—produced a most unusual 6-2 lineup.
At issue in Bank Markazi was the constitutionality of a statute that (at least as alleged by the petitioners) effectively dictates the outcome of a pending legal proceeding. The statute at issue was the Iran Threat Reduction and Syria Human Rights Act of 2012, which, among other things, made certain Iranian assets, held in the United States, available to satisfy liability and damage judgments in a specific case. According to Bank Markazi, this represented a violation of separation-of-powers principles and a legislative intrusion on the judicial power. A majority of the court disagreed.
Justice Ruth Bader Ginsburg, writing for a majority of the court, concluded that the statute at issue was constitutional. Joining Ginsburg were Justices Anthony Kennedy, Clarence Thomas, Stephen Breyer, Elena Kagan and Samuel Alito. Chief Justice John Roberts dissented, joined by Justice Sonia Sotomayor. That's not a lineup we've seen before, and I can't imagine when we might see it again.