The Volokh Conspiracy
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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.
