The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Thursday, the Supreme Court released two opinions: Pereida v. Wilkinson and United States Fish and Wildlife Serv. v. Sierra Club, Inc. The latter case was Justice Barrett's first majority opinion. The vote in Sierra Club was 7-2. Justice Breyer, joined by Justice Sotomayor, dissented on fairly technical grounds. Justice Breyer agreed with the majority that the case should be remanded back to the lower court. Indeed, Justice Breyer left open the possibility that he would "agree with the majority" opinion. His disagreement was hyper-technical
There is something of a tradition that a Justice's first decision should be unanimous. Justice Kavanaugh's first majority opinion, Henry Schein Inc. v. Archer & White Sales Inc. was unanimous. Same for Justice Gorsuch.
I suspect that if there was a unanimous majority opinion to be had from Justice Barrett's first sitting, the Chief would have assigned that case. Perhaps there were no majority opinions from Barrett's first sitting. Or maybe Sierra Club started off as a majority opinion, but Breyer and Sotomayor fractured off. Still, given this narrow disagreement, I was surprised that Justice Breyer would bother to dissent on Justice Barrett's first majority opinion. He could have swallowed his disagreement, and given his new colleague a warm gesture on a fairly non-consequential case. Instead, Justice Breyer dissented.
Now Justice Kagan joined the majority opinion. I have no clue about her views on the substance. But I imagine that Justice Kagan may remember the sting when Justice Scalia dissented from her first opinion. Maybe Justice Kagan gave Justice Barrett a join as a courtesy. If so, how do we explain the vote of Justice Breyer, who historically has used his votes strategically to form coalitions?
It's possible that Justice Breyer has seen the writing on the walls. The conservatives has no interest in working with him to build consensus opinions. The Chief can count to 5 without Breyer's help. And Justice Breyer may have already told President Biden he plans to retire. At this point, Justice Breyer may be IDGAF. He's checked out. Call it SCOTUS senioritis. Indeed, originally Justice Breyer's dissent was not respectful. His opinion originally ended with "For these reasons, I dissent." But on March 5 at 9:49 a.m., the Court revised the opinion. Now, Breyer's dissent was respectful.
The fact that Breyer made this change suggests something is afoot with respect to collegiality.
Mike Dorf offers a similar explanation:
Perhaps I'm wrong. Maybe Breyer and Kagan were voting their legal consciences 100% all the time, and it only looks like they were sometimes trimming in order to maintain their credibility and influence with the least conservative of their conservative colleagues. But from where I sit, it sure does look like that was what they were doing–at least sometimes.
Now we come to my hypothesis about Breyer: He has largely given up on moderating his best all-things-considered judgment in the hope of moderating the Court overall. On a Court in which the best one can hope to do in an ideologically high-stakes case is swing the Chief to convert a 6-3 defeat into a 5-4 defeat, the game isn't worth the candle.
Whatever the explanation, maybe Justice Kagan joined in the hope of wooing Justice Barrett. Interestingly, Kagan was the last new Justice to write a first majority opinion in a non-unanimous case; Scalia dissented; perhaps it still stings. If Justice Kagan is indeed trying to charm Justice Barrett in the hope of moderating her votes in some later cases, I wish her luck in the campaign, but I am not very confident that she will succeed.
It is always risky to read so much into subtle changes in the Court's decisions. But these two dissents on Thursday felt off.
But the Nino test makes my work better even when—or especially when—I wind up disagreeing. I discovered this effect early on, in my very first opinion. The Court's tradition is that a justice's maiden majority be unanimous. But Nino thought that silly: what was the point, he asked me (as he pretended to seek my permission for his solo dissent), of a convention that shied away from, rather than delighted in, the clash of ideas? So I was forced to respond to Nino's incisive views on the car-ownership deduction in bankruptcy law and, in that way, to make my own argument tighter and more convincing.
There was no sting.