Did Justice Alito lose the majority in Ramos? (Updated)

Linda Greenhouse speculates that Gorsuch's dissent became the majority opinion

|The Volokh Conspiracy |

On Tuesday, I pondered about five unanswered questions from Ramos. Linda Greenhouse poses another lingering question: did Justice Alito lose the majority? She writes:

At 26 pages, Justice Samuel Alito's dissenting opinion, which the chief justice and Justice Elena Kagan joined, was the same length as Justice Gorsuch's opinion. I have a feeling that it started out as the majority opinion, with Justices Ginsburg and Breyer onboard. Lacking proof, I'll leave it to future Supreme Court historians to validate or debunk that theory.

Greenhouse's theory could explain the final breakdown. Consider my idle speculation.

Initially, Alito wrote the majority for Roberts, Ginsburg, Breyer, and Kagan. It focused entirely on stare decisis, and had no occasion to discuss the original meaning of the Sixth Amendment. This opinion would have resembled Justice Alito's majority opinion in Gamble. That case declined to overrule the longstanding dual-sovereignty doctrine. Ramos would have a followed a similar path.

In this alternate scenario, there were four separate solo dissents. Thomas dissented on Privileges or Immunities grounds. Kavanaugh dissented; he advanced his own perspective of stare decisis. Sotomayor dissented; she argued stare decsisis was weaker in the criminal procedure context and Louisiana's rule was racist. And Gorsuch wrote his own idiosyncratic dissent: Apodaca wasn't a precedent in the first place.

But at some point, Ginsburg and Breyer realized they could join Gorsuch's quirky opinion, without having to commit to anything significant. Sure, there was some language that would make Justice Breyer wince. But so what. It was all dicta in a plurality opinion joined by only three members. It would have no precedential effect going forward.

Functionalist, "muddy yardsticks" can quickly be restored. Consider Justice Breyer's decision today in County of Maui v. Hawaii Wildlife Fund. He offered a seven-factor balancing test, none which was dispositive, and there may be more factors.

But there are too many potentially relevant factors applicable to factually different cases for this Courtnow to use more specific language. Consider, for example,just some of the factors that may prove relevant (depending upon the circumstances of a particular case): (1) transit time, (2) distance traveled, (3) the nature of the materialthrough which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5)the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutantenters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity. Time and distance will be the most important factors in most cases, but not necessarily every case.

That formalism didn't last long.

Most importantly for Ginsburg and Breyer: Apodaca would be overruled. Alas, Kagan continued to ride the stare decisis train.

At that point, it made sense for Justice Sotomayor to join some of Gorsuch's opinion to help it get to five votes, and be a majority. Same for Justice Kavanaugh. But they would not go along with all of it.

Now in dissent, Alito added Part IV-D, which attacked Kagan's dissent in Knick and Breyer's dissent in Franchise Tax Board. He no longer had to play nice to form a majority. And then Kagan dissented from that section.

Greenhouse's theory could help explain the bizarre breakdown. We'll find out when the papers become public. I hope I am still alive and blogging at that point.

Update: There may be a simpler way to explain the fractured outcome.

At conference, there were six votes to reverse. Usually, the senior associate justice would assign the majority opinion. That would have been Justice Thomas. But Justice Thomas made it clear that he would not concur with the majority opinion; he would only concur in judgment. Therefore, it would have fallen to Justice Ginsburg to assign the majority opinion. And she gave it to Justice Gorsuch. RBG is all too happy to give a conservative this decision. But after the draft circulated, Justices Kavanaugh and Sotomayor peeled off from parts of the decision.  They could not go along with Gorsuch's unique approach to stare decisis. Hence the fractured vote. I am open to other theories!

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  1. “the same length as Justice Gorsuch’s opinion. I have a feeling”

    Well, that is certainly hard evidence. Did she do a word count? That would decide it!

    Suck a hack, partisan writer.

    1. I’m not terribly impressed by Linda Greenhouse. But I don’t think any of this particular analysis is really indicative or consistent with her being a “hack, partisan writer”.

    2. Alito’s dissent in the County of Maui case is also the same length (18 pages) as the opinion of the court. Maybe that one started off as a majority too!

    3. Careful, your knee-jerk hatred may have gotten Blackman as collateral damage.

  2. No way Justice Ginsburg was going along with non-unanimous juries in criminal trials particularly given their history and just how much an outlier they are. Also, like the rest of the Apprendi 5, she is big on bright-line rules and joined a ton of Scalia opinions expressing the historical importance (albeit in dicta) of unanimous juries. Stare decisis in these kinds of fundamental rules of criminal procedure do NOT seem very important to her, e.g., Apprendi, Blakely, et al. But more recently, US v. Gamble where she was one of only two dissenters on a much more historically-grounded rule with MUCH firmer stare decisis credibility.

    1. This is the correct take. I think the only time she parted from Scalia on criminal jury rights was on consecutive sentences in Oregon v. Ice.

  3. I hope I am still alive and blogging at that point.

    Whether or not you’re still alive I’m confident you’ll still be blogging.

    1. Heh

  4. I’m not entirely sure that it would be a bad idea to go back a few centuries to each judge reading their opinion in full from the bench, and then leaving the common wisdom to figure out the rule of the case. At minimum, it would force even the highest-ranking judges and justices to fashion a coherent personal legal ontology, rather than just dawdling on their favorite bits of the law.

    A negotiated text that’s constantly reaching for a “join me” scrawled in the margin looses a bit of inherent authority. The point isn’t, as with legislatures and treaty negotiators, that everyone agrees, but that one person is to state unequivocally (an old-fashioned mind might say “at peril of their soul”) what they believe to be true.

    Mr. D.

    1. I’m entirely sure it would be a bad idea. The purpose of the court issuing opinions rather than just announcing who wins is in part for the litigants — to explain why the decision came out the way it did — and to provide guidance to individuals as to how courts will rule on cases in the future (by providing guidance to lower courts as to how they should rule in the future).

      “You figure it out” does none of that.

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