The Volokh Conspiracy
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Did Justice Alito lose the majority in Ramos? (Updated)
Linda Greenhouse speculates that Gorsuch's dissent became the majority opinion
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!
