What happens when SCOTUS is 3-3-3?

Somewhat frequently the Supreme Court will issue opinions in which the number of those who concur is equal to the number that write the main opinion. Sometimes the court even comes down 3-3-3, with a main opinion and two concurring opinions each garnering three votes. What or who determines which camp is considered the main opinion?

I thought that this is one of those “what’s the big deal about being the Chief Justice?” type of things. That is, if there are more votes for a particular side (i.e., the respondent), the CJ gets to choose who writes the opinion. People decide to either join or concur from there.

'Course, I may be wrong (it’s been a while since I took con law), but don’t have the time to do any real fact checking. My apologies if it’s done via fisticuffs.

IANAL, but aren’t the principles that:

(1) You need a majority on an appeals court for a particular action to be taken, but there does not need to be a majority agreeing on the reasons for the decision. So you could have a 3-3-3 split on the legal principles involved, but you wouldn’t have a split like that on an issue such as whether the appeal should be upheld or dismissed.

(2) If you have a 50-50 split, and if the chief judge doesn’t have the right to to break the tie, then the decision of the inferior court stands.

I also thought maybe this was the case, but then sometimes the CJ is in the concurring opinion. So unless occasionally the CJ is very humble, there must be something else going on.

That’s all true. But it doesn’t answer the question of what mechanism determines which concurring opinion is the main opinion; this is independent from whether or not the lower court’s decision is upheld.

Nitpick: The Chief Justice gets to assign the writing of an opinion when he is among the majority; if the Chief voted with the minority, the senior Associate Justice (in years on the court) in the majority does the assignment.

Remember that, while what’s generally newsworthy about a Supreme Court decision is the legal principle enunciated, the actual decision in the strict sense is the judgment to overturn or affirm a lower court decision. (Aside from the very rare original-jurisdiction issues, that is.) In the hypothetical vote described above, the decision proper would be 9-0 in favor of some action, say that the 6th Circuit ruling in the case before the Court is overturned. The reasoning might be fractured as noted, or even worse – there was a death penalty case in the 1970s in which there were nine separate opinions reported, one from each justice.

Remember that a concurring opinion is not necessarily a standalone opinion – the writer will “concur in the result” with the majority opinion, and may “concur in part” with the holdings in it. In those areas in which the “opinion of the court” has five votes, it is the majority opinion and the required precedent for new case law. Only if the court were divided 3-3-3, with each group of three holding an entirely separate opinion as to the reasons why the result was valid, would there be no majority.

Not quite what was asked, but to illustrate the general principle, is Oregon v. Mitchell, the case that led to the 26th Amendment. In 1970, Congress enacted the Voting Rights Act of 1970, which provided that the minimum age for voting should be 18 for all federal, state, and local elections. There were five opinions rendered. Four justices believed that Congress had the right to set the voting age for any election, as it had done. Four other justices said that Congress had no such power, and that setting the voting age was among the states’ reserved powers. Justice Hugo L. Black wrote the majority decision, but the result was something that he alone held among the justices: Congress has the right to set the voting age for federal elections, but not for state and local elections. Since he had four other justices agreeing with each half of his formulary, albeit it was four different justices for the first and second halves, his opinion became, briefly, the law of the land. At that point, Congress enacted the 26th Amendment and the states ratified it, providing that neither Congress nor the states could bar a citizen of 18 years of age or older from voting on account of age. But without the amendment, Hugo Black’s opinion would have remained the law of the land.

I think I’m either mistaken in my assumption or my question isn’t making sense.

My assumption: When there is a plurality opinion (say 4-4-1), one of the two sets of four is designated as the main opinion and the other a concurrence.

My question: How does the court determine which is declared the concurrence?

Now, are you saying that if the chief in my example is in one of the sets of 4, he/she gets to pick which opinion is the concurrence? If so, why would he choose to designate his own as the concurrence?

Oh, I think I figured out the problem. The procedure is that of everyone who agrees with the decision, the chief justice selects one to write the opinion (if he/she is in the majority). Then, after this opinion is written, justices who agree with the decision but not the decision’s reasoning can choose to write concurring opinions. Hence, there is no point at which there are two camps and one has to be selected at the main opinion. Right?

Sort of.

There is a difference between the disposition and the opinions. The first time there are two “camps” is when some of the Court votes one way (to affirm or reverse) and the rest of the Court votes the other way. Then the camp with five votes is the majority, and the camp with four votes is the minority – regardless of how much dissention there may be in the ranks as to why or how to affirm or reverse – and often there’s quite a lot. As Polycarp said, the Chief Justice assigns the opinion writing for his camp; the most senior Associate Justice in the other camp assigns the opinion writing for that side. In reality, the process is more collaborative than this; justices can request to write opinions or may be assigned to write based on their areas of interest or expertise.

But once the disposition is decided (either to affirm or to reverse), there may be dissention in the ranks on a particular side as to why or how the case should be affirmed/denied. You may end up with two or more “camps” within a side, disagreeing on the basis or mechanism for the disposition, even if they agree as to what the disposition should be. In that event, the “main decision” is the one that gets the most votes for that side.

A plurality opinion happens when no single opinion receives a majority of votes from the Court as a whole, but one opinion gets a majority of votes for the majority side. Then the decision is determined by which opinion received the most votes from the majority side, and that opinion is the “plurality opinion” while all other opinions for that side are “concurrences.” But no one decides or decrees which is the plurality opinion; it’s the one with the most votes for the majority side. Which is the “main” opinion for the majority side may change as the justices review what is written and decide which opinion they want to join, or whether they want to write one of their own. If more than half the Court signs a single opinion, that is the majority opinion. But if less than half sign a single opinion, the opinion with the most signatures on the prevailing side is the plurality opinion of the Court.

The most common plurality opinion is the type found in Rapanos v. U.S., 126 S.Ct. 2208 (2006). In that case:

Justice Scalia wrote an opinion in which Chief Justice Roberts and Justices Thomas and Alito joined (4).

Justice Kennedy concurred, but did not join Justice Scalia’s opinion. (1)

Justice Stevens dissented, and Justices Souter, Ginsberg, and Breyer joined the dissent. (4).

Thus, the vote is 4-4-1 on the opinions. The vote for the result is 5-4 (because Kennedy concurred with Scalia’s side). BUT since no single opinion was signed by the majority of the Court (5), there is no “majority opinion.” There is only a “plurality opinion,” authored by Justice Scalia, that has more votes for the majority side than any other opinion for the majority side. So even though it has no more votes than the dissenting opinion (4 each), it is still “the decision” for purposes of the case, because 5 people voted for the result it sets forth. A 4-4-1 decision reflects a deeply divided court, obviously.

BUT lets say the whole panel, all 9, vote to affirm. But what if the vote is 4 for Justice 1’s opinion; 4 for Justice 2’s opinion; and 1 for Justice 3’s opinon? A vote of 4-4-1, but all on the same side? Obviously, Justice 3’s opinion is a concurrence, but which of the other two opinions is the plurality opinion? Neither. There isn’t one. So you’d know the decision was reversed or affirmed, but you wouldn’t be able to point to either opinion as being legally binding as “the” opinion of the Court. This would be an exceedingly rare result.

If you concur with the main opinion, it means you agree. If there is a main opinion and two concurring opinions, then the court is unanimous, right? Or is there some special SCOTUS use of the word “concur” that is the exact opposite of its dictionary definition?

Did you, perhaps, mean “dissenting” opinion?

Yes, that was the scenario I was asking about. Thank you.

I wonder about this, though, because when this happens the reporter only marks one of the sets as a concurrence. Even in this scenario, one is printed first and is called “the opinion of the court.” But you’re saying this is just convention, and no special significance is placed on this opinion?

That’s right, I think you misunderstood what was being asked. The court can be unanimous in the decision and still write several different opinions.

You can have a three way tie in which all three plurality decisions agree unanimously on the result, but disagree in part or in whole on the legal rationale mandating the result. The concurrences in those cases would be “concurring in judgment” or “concurring in part and concurring in judgment.” These can make it exceptionally difficult to determine precedence was laid. Asahi Metal Industry Co. v. Spuerior Court of California, 480 U.S. 102 (1987), was a particularly nightmarish example:

No - it’s that there are two different things going on. There is the vote to affirm or deny the decision of the coiurt below, and the reasons for that vote.

A judge can concur with another judge that the decision below be affirmed, but need not concur with the reasons that the other judge gives.

If you don’t have a majority concurring with the reasons, then there is only a plurality opinion, even if all of the judges concur with the result.

No - to be the opinion of the Court, it must have the support of a majority of the judges. If no judge has a majority of support for his/her reasons, none of the reasons will be identified as the judgment of the Court. The plurality opinion will be reported first, simply based on the number of judges, but it will be styled “the opinion of Justice W, with whom Justices X, Y and Z concur”, or words to that effect.

Rather more elegant in form than the case cited by pravnik, but just as confusing, was the decision of the Supreme Court of Canada in R. v. Rahey, an early decision on trial delay under the Charter.

Nine judges heard the case. By the time the decision was rendered, Justice Chouinard had died.

The remaining eight judges split 2-2-2-2: Lamer J. (Dickson C.J. concurring); Wilson J. (Estey J. concurring); LeDain J. (Beetz J. concurring); and La Forest J. (McIntyre J. concurring).

The Court was unanimous that a stay should be entered because of trial delay, but the precedential value of the case was next to nil.

No. The Court may be unanimous as to the disposition (reverse or affirm) but that won’t necessarily mean it’s unanimous as to the decision. “Concur” as used by U.S. appellate courts means you agree with the disposition, but you have some reason to write separately – you disagee with the rationale for the main decision, or you think it needs to be clarified in some way, or it doesn’t address some point you think should be addressed. If a justice agrees with the main opinion as written and doesn’t think it needs to be modified or explained, he or she just signs that opinion instead of writing a concurring opinion.

For example, let’s say Justice InvisibleWombat writes an opinion affirming an offender’s sentence for a crime. Justice Richard Parker agrees that the sentence should be affirmed, but in his opinion the Court should not even look at the case, because the offender didn’t file his appeal before the deadline to file it ran out. You both agree as to the disposition* – affirm – but you disagree as to the reason. If Richard Parker’s is the opinion that ends up being the majority or plurality opinion of the court, your opinion will be the concurrence, and you will concur as to the result but not as to the reasoning.

I don’t know. Do you have a cite I could look at? If the unanimously-disposed case’s opinions were 3-3-3, or 4-4-1, you wouldn’t have a majority OR a plurality opinion. I am unaware of any procedure for deciding which opinion is “the opinion of the court” in those circumstances. How could that be done? There’s no basis to decide that one over the other is THE opinion of the court. If you have a Supreme Court cite for me, I’d be happy to take a look at it.

Thanks for the cite, pravnik!

Okay. Looking at this, we see that Justice O’Connor can be said to be writing “for the Court” for Part I, because the Court was unanimous there. She can be said to be writing “for the Court” for Part II-B, because 7 of the other justices agree (a majority). None of the other opinions – including Justice O’Connor’s for Parts IIA and III – are writen for the Court, because they are neither plurality nor majority opinions, and therefore cannot be said to have issued “from the Court.”

So this seems to bear out my understanding that only plurality or majority opinions are issued “for [or from] the Court.” Again, if you have a reporter cite where a tie opinion is denominated “the opinion of the Court,” I’d be happy to see it. I don’t think that’s how it’s done correctly.

I didn’t have a particular case in mind, I just thought I had remembered reading it that way. Perhaps I’m misremembering. Thank you for the answer.

You’re welcome. :slight_smile: It’s also worth noting, as Northern Piper did, that lawyers hate these types of cases because they have next to no value as precedent, so they don’t help to resolve any other controversy that might come up on the same topic. There’s no way to predict from a 4-4-1 opinion which way the Court may rule the next time the issue comes up, so it’s like “Gee, thanks for total lack of guidance and clarification.”

Hey, no prob. All in a day’s avoidance of work. :smiley:

(Just kidding on that, by he way. I’ve actually been busting my ass today and wrote that on my lunch hour.)

This is an interesting question that came up in a moot court I judged a few years ago. The Court says:

Marks v. United States, 430 U.S. 188, 193 (1977) http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=430&invol=188; but see, Thurmon, Mark, Note: When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Opinions,
42 Duke L.J. 419 (1992) (noting that Marks has not been uniformly applied and is often unhelpful).

Footnote one from Mr. Thurmon’s Note seems respond to the OP: