The Volokh Conspiracy

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Volokh Conspiracy

Odd SCOTUS Opinion Line-Ups (2018 edition)

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


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.