Odd SCOTUS Opinion Line-Ups (2018 edition)

This year's Supreme Court term has produced a few opinions with unconventional line-ups.

|The Volokh Conspiracy |

The Supreme Court has not issued too many opinions so far this year, but among the few that have been decided are two with particularly unusual line-ups.

Last week, the Court decided Patchak v. Zinke. concerning whether a federal statute directing the dismissal of certain claims against the Department of the Interior violates Article III of the Constitution. "No," is the answer the Court provided, although no opinion commanded a majority of the justices..

Justice Clarence Thomas announced the judgment of the Court and authored a plurality opinion joined by Justices Breyer, Alito, and Kagan. (!) Justice Ginsburg concurred in the judgment, joined by Justice Sotomayor. Chief Justice Roberts dissented, joined by Justices Kennedy and Gorsuch. This 6-3 (or 4-2-3) division is interesting in that it divided the Court along neither Right-Left nor formalist-pragmatist lines.

Today the Court decided another case with an interesting division: U.S. Bank National Association v. Village at Lakeridge, concerning the proper standard of review in appeals of Bankruptcy Court proceedings. The Court was unanimous and Justice Elena Kagan wrote the opinion for the Court. Justice Kennedy concurred, as did Justice Sotomayor. The interesting part, however, is that Justice Sotomayor was joined by Justices Kennedy, Thomas and Gorsuch. That's certainly a line-up you don't see every day, and another split that cannot be explained along traditional ideological or methodological lines.

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  1. Having spent the vast majority of the last 31 years practicing in the commercial bankruptcy area, I was interested in the Village of Lakewood case when the Petition for Cert was filed, and disappointed a bit when the Court only granted cert on the standard of review question. I strongly suspect that if the Court had granted review on the other issue, the legal standard for determining who was a non-statutory insider in a Chapter 11, this case would have come out the other way. While I think that the Court got the answer right on the limited question presented, the history of this case demonstrates why a creditor should often consider insisting upon its right to an Article III judge and should never waive its claim that the Bankruptcy Judge should not decide its fate. There are far too many Bankruptcy Judges who will bend over backwards to reorganize a debtor, and they are smart enough to craft their decision as a factual finding that is essentially bullet proof on appeal. If I represent a secured creditor in front of such a judge, I’m repeating the Stern v. Marshall mantra every chance I get.

  2. Sorry, Village at Lakeridge, not Village of Lakewood. There’s a Lakewood neighborhood in Dallas, and my mind just got distracted.

  3. Why Article III? I would think that any statute that directs the outcome of a case before the courts constitutes a “bill of attainder” since that term is defined by the legislative branch bypassing the power of the judicial branch.

  4. Is Patchak v. Zinke the first time Gorsuch and Thomas were on opposite sides of a case?

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