Supreme Court

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.]

NEXT: Stare Decisis and Judge-Made Law

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  1. Orin was cited nine times in Carpenter, but only in the dissents (once by Kennedy, three times by Thomas, once by Alito and four times by Gorsuch).

  2. “traditional ideological lines”

    How often do Roberts and/or Kennedy to have join the liberals until people stop saying this.

    Kennedy is a liberal who sometime votes conservative, Roberts is a moderate [shudder] who increasingly sides with liberals.

    1. This is silly. Both vote in a “conservative” direction more often than not when the Court divides on ideological lines. (In more technical terms, the mode of their decisions in such cases is still “conservative.”) They both deviate at times, based upon each of their preferences, as do other justices (e.g. Gorsuch in Dimaya, Scalia in Craford, etc.).

      1. “Both vote in a “conservative” direction more often than not when the Court divides on ideological lines.”

        “more often than not” is only slightly inconsistent with my Tony comment and not at all with the Roberts one.

        51% or even 60% is not enough to be truly conservative.

      2. Their Judicial Common Space scores suggest Bob has a point, although Kennedy is no liberal.

        1. He upheld abortion on demand and gay marriage. He is no conservative either.

    2. I know this is an old-fashioned opinion, but some of us still prefer that judges decide cases based on facts and law, and NOT political ideology.

      I’m even old enough when conservatives said they wanted this.
      I mean, unless when they said they wanted to get rid of “activist judges” who were “legislating from the bench”, they meant they wanted activist judges who would legislate from the bench more to their liking? Nah, that’s too cynical, right?

  3. Complete conjecture here, but I think that Roberts might be giving Gorsuch opinions to write to help legitimize him for 1/2 the country that (erroneously) believes that the seat belongs to Merrick.

  4. The Gorsuch “dissent” in Carpenter was a dissent in name only. He spent pages and pages going even farther in a pro-privacy direction than the majority (saying that the Third Party Doctrine is a complete sham and should be overruled, since obviously you can give someone your data without wanting them to share it with others, saying that tower dumps should require warrants as well, calling for other decisions to be overruled for not protecting privacy enough), but then ends by saying that Carpenter’s side didn’t bring up Gorsuch’s (and Scalia’s) preferred property rights grounding of the Fourth Amendment, so he can’t rule for them. However, he all but said that if only Jones (the GPS on a car case) and Jardines (the drug dog sniffing in the curtilage case, Scalia) were cited, he would have concurred and ruled for Carpenter, similarly for tower dumps. Just replace Scalia’s comments about trespass in Jones with the hot property rights concept of bailments.

    So there’s a clear blueprint for getting to 6-3 here and possibly in other cases. Almost malpractice now not to include a “property rights analysis to get Gorsuch’s vote” in your briefs. Hard not to wonder if Gorsuch would have stuck to his guns, or would have concurred in judgment if there weren’t 5 for Carpenter’s side already.

    1. Bailment is a really great solution to the 3rd party record problem.

      I think some of the justices are skeptical of companies which will almost assuredly alter their user contracts to aid government searches and limit their bailment liabilities for conversion.

  5. After reading Gorsuch’s dissent I see that he is trying to wade through the quagmire that is modern jurisprudence to find a simply test to protect property and limit the government. He discusses bailment as the solution.

    I am glad that the court is trying to protect the protections of the 4th Amendment but they have made law more complicated in the process.

    1. ” they have made law more complicated in the process”

      Of course. That is SOP for them.

      1. It is. It will take more originalist justices decades to clean up how complicated and unconstitutional much of case law currently is.

        1. A quick question:

          Are we to assume that your chosen identity indicates that you prefer your governing documents not be burdened with a Bill of Rights? I mean, you chose 1789 and not 1791 for a reason, right?

  6. I read Ortiz v. United States .

    The Court cites, in pages 10-11, cited authorities standing for the claim that courts-martial were long underastood to have a judicial nature, even citing articles predating the Civil War.

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