The Volokh Conspiracy

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What Do Justices Gorsuch and Justice Breyer Have in Common?

Still more interesting line-ups from SCOTUS


Justices Gorsuch and Breyer are not two jurists we'd usually put together. Justice Gorsuch is a textualist, originalist, and formalist. Justice Breyer, ever the pragmatist, is none of those things. Yet today Justices Gorsuch and Breyer dissented together in Westerngeco LLC v Ion Geophysical Corp, which concerned the critical question of whether WesternGeco's award for lost profits was a permissible domestic application of §284 of the Patent Act. Justice Thomas, writing for seven justices, concluded the answer is yes. Justice Gorsuch, joined by Justice Breyer, concluded otherwise.

The line-up in Westerngeco was hardly the only notable opinion from the Supreme Court today. The Court also decided Carpenter v Untied States. In an opinion by the Chief Justice, the Court concluded that obtaining cell-site data does constitute a search under the Fourth Amendment. Surprisingly (and perhaps regrettably), this was a 5-4 decision, as the Chief was only joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor. The other conservative justices all dissented, each writing his own dissenting opinion. I suspect Orin or others may have more to say about this case.

Justice Kagan delivered the opinion for a 7-2 Court in Ortiz v. United States, which concerned whether the Supreme Court had jurisdiction to hear an appeal from the Court of Appeals of the Armed Forces (CAAF) and, if so, whether it was a problem under relevant statutes or the Appointments Clause that a judge hearing this case had served simultaneously on the Court of Military Commission Review and the Air Force Court of Criminal Appeals. This makes the second time Justice Kagan has written an Appointments Clause opinion in the past two days. Justice Alito and Gorsuch dissented on the jurisdictional question, which had been raised and argued by an amicus, University of Virginia Law Professor Aditya Bamzai. Although Professor Bamzai's position did not prevail, his work is discussed extensively by the Court (something us fellow law professors think is really cool). Based upon the resolution of Ortiz, the Court dismissed as improvidently granted the appeals in two companion cases, Cox and Dalmazzi.

Finally, The court decided Currier v. Virginia 5-4 along traditional ideological lines. Justice Gorsuch wrote for the majority, concluding that if a defendant consents to the severance of charges against him into separate trials, this may preclude raising a double-jeopardy defense. Justice Kennedy only joined in part and the liberal justices dissented.

Interestingly enough, Currier is the fifth time Justice Gorsuch has written a majority opinion in a 5-4 decision this term. (That's five out of seven majority decisions he's written this term.)

What does this mean? Well, it doesn't tell us much about Justice Gorsuch's judicial ideology as he's not the one choosing to write in these cases. As the junior-most justice, he never gets to assign writing duties. Moreover, if we want to know more about a justice judicial ideology, we have to look at the full range of cases that justice participated in.

In each of these 5-4 cases, Justice Gorsuch was assigned the opinion by Chief Justice Roberts. What this would seem to indicate is that the Chief had confidence that Justice Gorsuch would write an opinion that would hold the majority and adequately justify the decision at issue. This might suggest the Chief has confidence in the Court's newest justice. On the other hand, it may just be the luck of the draw.

There are six decisions yet to be decided. They will be handed down next week.

[Note: I've corrected a slight misstatement of the issues in Ortiz.]