Supreme Court

Today's Interesting SCOTUS Line-Ups and What They Do (or Don't) Reveal

The Supreme Court gave us one unanimous opinion and two messes, one larger than the other.

|

The Supreme Court issued three opinions in argued cases this morning. One was unanimous, and two produced interesting splits.

The Court was unanimous in NCAA v. Alston, rejecting the NCAA's attempt to exempt itself from antitrust scrutiny, as Eugene noted below. Justice Gorsuch wrote for the Court, which is fitting given his prior antitrust work. Justice Kavanaugh wrote a separate concurring opinion, which is also fitting because, well, the case was about sports.

The Court split 3-5-1 in Goldman Sachs Group v. Arkansas Teacher Retirement System. The Court's majority opinion by Justice Barrett concluded the Second Circuit did not sufficiently consider the evidence that would have counseled against certifying the plaintiffs' class. On this the Court was 8-1 (Sotomayor dissenting). Justice Barrett's opinion also held that the defendants (here, Goldman Sachs) must bear the burden of persuasion that any misrepresentation did not have a price impact. This holding was 6-3, as Justice Gorsuch dissented, joined by Justices Thomas and Alito.

The real mess came in United States v. Arthrex, a challenge to the constitutionality of Administrative Patent Judges (APJs) who hear cases within the Patent Trials and Appeals Board (PTAB). As this case concerned the Appointments Clause, it makes sense that Chief Justice Roberts announced the opinion of the Court, as he wrote the majorities in Free Enterprise Fund v. PCAOB and Seila Law v. CFPB. Here, however, the Chief Justice could not cobble together a clear majority. Here's the lineup:

ROBERTS, C. J., delivered the opinion of the Court with respect to Parts I and II, in which ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined, and an opinion with respect to Part III, in which ALITO, KAVANAUGH, and BARRETT, JJ., joined.  GORSUCH, J., filed an opinion concurring in part and dissenting in part. BREYER, J., filed an opinion concurring in the judgment in part and dissenting in part, in which SOTOMAYOR and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined as to Parts I and II.

So there were five votes to declare that APJs are principal officers for purposes of the Appointments Clause, and therefore are not constitutionally appointed. This is where the Chief was joined by Justices Alito, Gorsuch, Kavanaugh and Barrett. Justice Thomas dissented on this point, arguing APJs are best understood as inferior officers, joined by the Court's liberal justices.

Where things got tricky is on remedy. Justice Gorsuch would have invalidated the underlying APJ order that was being challenged. The Chief Justice preferred a more "modest" approach, whereby he arguably rewrote the statute to provide for review of APJ decisions by the Director of the PTAB. Here the Chief was only joined by Justices Alito, Kavanaugh and Barrett. The Court's remedial holding was ultimately 7-2, however, as Justice Breyer and the other liberal justices concurred in that holding. (For more on the line-up and holding, see this Twitter thread by Prof. Chris Walker.)

One other little note: It is quite interesting that Justice Alito joined the Chief Justice's discussion of severability given Alito's dissent in California v. Texas. Among other things, the Chief wrote:

In general, "when confronting a constitutional flaw in a statute, we try to limit the solution to the problem" by disregarding the "problematic portions while leaving the remainder intact." Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 328–329 (2006). This approach derives from the Judiciary's "negative power to disregard an unconstitutional enactment" in resolving a legal dispute. Massachusetts v. Mellon, 262 U. S. 447, 488 (1923). In a case that presents a conflict between the Constitution and a statute, we give "full effect" to the Constitution and to whatever portions of the statute are "not repugnant" to the Constitution, effectively severing the unconstitutional portion of the statute. Bank of Hamilton v. Lessee of Dudley, 2 Pet. 492, 526 (1829) (Marshall, C. J.). This principle explains our "normal rule that partial, rather than facial, invalidation is the required course." Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 504 (1985).

In California v. Texas, Justice Alito called for departing from this approach and declaring the entire ACA inseverable from the penalty-less mandate. I suppose there are ways of reconciling the two opinions, such as by trying to claim that each followed the best estimation of legislative intent or that severing the unenforced and unenforceable mandate would render the ACA "an incomplete or unworkable statutory scheme," but I do not find these arguments persuasive.

Given the splintering in Arthrex, it will be particularly interested to see how the Court resolves both the merits and remedial questions in Collins v. Yellen, one of the few remaining cases from this term.

Twelve cases remain to be decided, and we will get more opinions on Wednesday and Friday of this week.

 

NEXT: "The NCAA Is Not Above the Law": Justice Kavanaugh Criticizes "Price-Fixing Labor" in College Sports

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Arthrex was always going to be a mess. I do find it disappointing SCOTUS simply decided to rewrite the statute instead of just stay everything and give it to Congress to fix.

    But while I tend to agree with the conservatives on these sorts of cases I must say … making 250ish people several layers below the president is … somewhat ridiculous? Thomas had it exactly right on this point.

    And frankly, this is like the 4th case where repeated attempts are made to blow up the patent system … which I dont very much care for. The Inter Partes Review system is a good system. Let it work.

    1. I am looking for an N word for lawyer.

        1. What is pretty good, but I want a better, vile epithet unique to lawyers. Scumbags and vermin are generic.

          1. How about DaivdBehar?

  2. It is new to me that Justices can dissent in judgement but then join as to remedy. Is that rare/new, or was I not paying good enough attention in law school.

    Also, lol Alito is a tool with no shame.

    1. It is new to me that Justices can dissent in judgement but then join as to remedy. Is that rare/new, or was I not paying good enough attention in law school.

      Doesn’t strike me a particularly novel. United States v. Booker, 543 U.S. 220 (2005) is one notable example that comes to mind.

      Also, lol Alito is a tool with no shame.

      I remain baffled at how liberals can claim that originalism doesn’t meaningfully restrain judicial decision-making when Alito is around to demonstrate what results-driven conservative jurisprudence actually looks like.

      Reply

      1. I remain baffled at how liberals can claim that originalism doesn’t meaningfully restrain judicial decision-making when Alito is around to demonstrate what results-driven conservative jurisprudence actually looks like.

        Ahh, but the rub is Alito calls himself an originalist, albeit a ‘practical’ one.
        IMO the issue is not that originalism doesn’t constrain, but that it does not constrain more so than other interpretive methods.

        1. It constrains LESS than at least one method.

          The way judges are constrained is with stare decisis. Conservatives don’t like stare decisis because it requires them to obey liberal decisions they hate, and also because they tend to think that judges, like other experts, no less than they do about everything (including a subject as complex as constitutional law). Liberals don’t like it very much either because you sometimes have to obey conservative decisions.

          But stare decisis actually works. Read Rehnquist’s opinion in Dickerson, where he upholds Miranda, and you will see a judge ACTUALLY being constrained. And the reason is you can’t just do law office history and BS your way out of the conclusion like you can with originalism. With stare decisis, it’s perfectly clear what the previous court says and you have to obey it.

          1. I meant to say “know less than they do about everything”, not “no less”.

          2. I actually think Stare, like judicial minimalism, can be thought of as orthogonal to originalism.

            1. Naah, originalism is actually the philosophy MOST at odds with it. Because for other philosophies, there are at least pragmatic, rules and norms based reasons for following precedents. But when a precedent contradicts the view of an originalist as to what the Constitution requires, it is not only seen as not valid but as a kind of offense.

              1. You’re mixing up right-wingers using originalism as a method to demonize the other side and originalism the doctrine.
                Which is wrong, but doesn’t necessarily include that it provides the One True and only legitimate answer to Constitutional questions.

                1. I don’t think I am wrong. Originalism is by its nature an extremely arrogant judicial philosophy. There is no non-arrogant version of it.

                  To be an originalist, you have to think “I am uniquely situated to channel the beliefs of the framers, and my view as to what the framers wanted is so incredibly wise and accurate that it overrides the views of all the incredibly intelligent judges who have interpreted this text”. Only a completely arrogant person actually approaches judging or legal interpretation like that. But originalists do.

                  The One True And Legitimate Answer is exactly the attraction of the theory. If it doesn’t deliver that, there’s no reason to disregard precedent and theory and structure. The point is to give the person an excuse to disregard pragmatism.

                  1. William Baude is pretty good and pretty originalist.

                    It’s no more arrogant than any other method of Constitutional interpretation, where you must think you have the Constitution right and a buncha judges on the other side have it wrong.

                    Won’t disagree with you that the scholarly marketing of the theory as determinative in a unique way is bullshit thought.

                    1. The “good” originalists (e.g., Jack Balkin) don’t actually treat the theory very seriously.

                    2. Balkin is a “fabian” originalist. Which is to say, he’s a living constitutionalist who’s trying to steal the term for his side, because it polls better.

                  2. To be an originalist, you have to think “I am uniquely situated to channel the beliefs of the framers, and my view as to what the framers wanted is so incredibly wise and accurate that it overrides the views of all the incredibly intelligent judges who have interpreted this text”. Only a completely arrogant person actually approaches judging or legal interpretation like that. But originalists do.

                    I’m not following your logic here at all. And I’m not even going to quibble over the “what the framers wanted” part — I don’t see how believing that cases should be resolved by looking to “X” implies a belief that you are also better than anyone else at evaluating “X”.

                    Now, as an empirical matter you may be right that originalists are more arrogant than other judges. Certainly the most arrogant judge on the supreme court (Gorsuch) is an originalist, and I’m sure you’d say that the most uncompromising originalist (Thomas) is arrogant, although I don’t think I agree for the reasons outlined by Sarcastr0. But I can’t say that my experience with other judges suggests any particular correlation that I can see.

        2. Ahh, but the rub is Alito calls himself an originalist, albeit a ‘practical’ one.

          And Kagan said that we’re all originalists now. In his actual opinions, he doesn’t pretend to give any weight to originalism (unless it inclines towards the result that he already wanted to reach), and he’s more than happy to dunk on it at least as much as you or Dilan Esper.

          1. Without checking, I’m pretty sure she said “textualists,” not “originalists.”

            1. She said both, at different times. “All orignalists now” came from her confirmation hearings; “all textualists now” was in a lecture at Harvard in 2015.

              1. Ah, okay.

  3. All these separate writings but a modern record low of decided cases. Such egotists.

    Meanwhile the circuit courts are without effective supervision and litigants go without finality.

    1. litigants go without finality

      Speaking of ego, demanding the right to a Supreme Court opinion on behalf of third parties is a pretty impressive example.

      1. Comment about does not equal demand.

        1. You condemn the court for not providing it, so hard to see it as otherwise.

          An impotent demand is a demand nonetheless.

          1. Is it egotistical to argue that the Supreme Court hears the right number of cases, since the justices don’t need internet commenters to defend their choices either? Or do you think it’s simply impossible to discuss the issue with humility?

            1. Hah. Interesting point.

              Yelling about ego driving the Courts’ not taking a lot of cases is hypocritical.

              The humble thing to do is maybe not declare the Court egotistical if they don’t follow your suggestions.

              But, if I had to choose, I’d argue leaving the number up to the institution is the more humble way.

              1. “yelling”

                My words were written at their usual volume.

                Plus its not the failure to take cases that is egotistical, its the apparent belief that everyone is just dying to read their writings.

                If they wanted to be professors they should have taken that gig.

Please to post comments