From my handy “Dictionary of Modern Legal Usage”:
That last sentence tends to confirm my observation that per curiams are not handed down with dissenting opinions, which is what makes this one so strange to me. Ah well, bad facts make bad law.
CNN’s reports show a 7-2 split on ruling the re-count was unconstitutional, but a 5-4 split on whether a constitutional recount could be done in the election time frame. This would make for the strange looking final ruling.
It wouldn’t be that strange. Justices concur in part and dissent in part all the time. If all you wanted to do was show where everybody stood on the 7-2 and 5-4 issues (call 'em A and B), it would look like this:
O’Connor, J., expressed the opinion of the court, in which Rehnquist, C.J., and Scalia, Kennedy, and Thomas, JJ., joined, and in which Breyer and Ginsburg, JJ., joined with respect to Part A.
Stevens, J., issued a dissenting opinion, in which Souter, J., joined, and in which in which Breyer and Ginsburg, JJ., joined with respect to Part B.
Then just throw in your concurring opinions for everybody who wanted to throw in their extra $.02, and voila, you got yourself … yeah, it’s pretty much a mess. But so are most other close, important cases.
NPR addressed the mystique of the Supreme Court last week in one of it’s reports. It had been bandied about in the media as to whether or not it would cause a problem with the public perception of the Supremes in making a ruling on this issue. The report talked about how public opinion of the Supremes and their “supreme-like power” have gone in and out of favor over the years. There was a time when some had called for an impeachment of Chief Justice Earl Warren. In more recent years the Supremes have enjoyed a period of great respect and a sense of non-partisanship. This ruling may change all of that.
Needs2know
CNN discussed the Florida supreme court [may not apply the the US SC]. They mentioned that if several justices wrote the court’s opinion, it was not signed since they can not take credit for another’s work. The opinion is only signed when it is only when one justice writes an opinion, that is so good that others will “join” it, rather than write their own opinion.
For this 7-2 & 5-4 case, there is no way the one person could write the court’s opinion. Instead it would be several justices writing it, so none could sign it as author.
CNN is misinformed, starfish. Judges collaborate on opinions all the time. True, one judge takes primary responsibility for the opinion in most cases, but the process of getting everybody on board requires all kinds of compromises and cooperation. In fact, there’s Planned Parenthood v. Casey, the 1992 case that reaffirmed (but somewhat limited) the constitutional right to abortion:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case=us=505=833
In that one, O’Connor, Kennedy, and Souter took the unprecedented step of issuing a joint opinion under all three of their names.
Judges semi-regularly pass along opinions that they’ve written to other judges, who then issue them under their own names. Judges have even been known to write dissents or concurrences for their own majority opinions. Naturally, the new judge will touch things up, but just because an opinion goes out under one name does not mean that’s the person who actually wrote it.
Looks like my question #3 was answered by Justice Thomas when he did an INTERVIEW:
http://www.cnn.com/2000/LAW/12/13/thomas.supreme.court/index.html
Next step Justice Ginsburg on Oprah!
Ha! Who else here would pay big coin to get a .WAV file of James Earl Jones saying this?
- The issuance of a per curiam opinion here is not surprising. The Court issued its decision in the case of Harris v. Palm Beach County Canvassing Board per curiam as well, though admittedly that was a 9-0 ruling. Further, you will notice that the opinion of the Supreme Court of Florida issued in Gore v. Harris on Dec. 8 was also per curiam, with only four justices out of seven in agreement.
By the way, don’t get confused here. The first case that the Supreme Court of Florida ruled on was titled Palm Beach County Canvassing Board v. Harris, but the name changed to Harris v. Palm Beach County Canvassing Board when the Supreme Court of the United States ruled on it; similarly the second case was titled Gore, et al. v. Harris, et al. before the Florida court, but became the now already infamous decision Bush, et al. v. Gore, et al. when it went before the national court. In each case, this is because the Supreme Court of the United States hears such cases on petition, rather than on appeal (the petition has to be granted, rather than the court automatically reviewing the case), and the petitioners are listed first in the title. Mr. Bush was one of the ‘et al.’ mentioned in the title of the Florida case.
The Florida opinion was per curiam, in my opinion, because it was not primarily the work of any one author, but instead the cobbled together pieces of proposals from the four justices who agreed with the position taken. I think this reflected the haste with which the opinion was issued. Reading that opinion, one is left with the feeling that there were many authors from the lack of uniformity in outlining schemes for points made in the decision, as well as the multiple writing styles.
As to the opinion of our Supreme Court of the United States, there are two possibilities. One is that the Chief Justice authored an opinion that included both the analysis of the equal protection argument in the per curiam opinion and the analysis in his own concurring opinion, but Justices Kennedy and O’Connor would not go along with the attempt to discuss the constitutionality of what the Florida court did in interpreting Florida law. They could have taken C.J. Rhenquist’s equal protection analysis and grafted to it language about why the case was being reversed (the analysis of the ‘remedy’ given the ‘mandate’ of 3 U.S.C. §5). Another possibility is that the per curiam opinion was authored not by one justice, but taken from the suggestions of all five in the ‘majority’ on the issue of ‘remedy’. Finally, it could be supposed that the “Court’s” opinion is left as a per curiam opinion in an attempt to minimize the impact of the decision, and deflect criticism of the opinion as being generated by any specific member of the Court. This, of course, would only protect Justices O’Connor and Kennedy, since the opinions of the C.J. and his sidekicks, the Scalia/Thomas ‘monster’ (a reference to another famous two-headed hydra of the Court’s not-too-distant past history) were made abundently clear in the concurring opinion.
For those of you who think this set of opinions was complicated to understand, I refer you to the opinions in University of California Regents v. Bakke, 438 U.S. 265 (1978). I quote the official description of who wrote what:
There are some even more famous cases where there never was a majority, only a disposition agreed to by at least 5 of 9 justices, with no majority conclusion of law.
One final note: in the beginning of the Supreme Court, each justice always wrote an opinion with his conclusion of law and determination of remedy. One had to read them all to understand what the court had actually done. This gave way shortly thereafter to the current system, where a justice only authors an opinion when he or she either feels that a legal point not addressed by the official opinion of the court has not been adequately discussed, or wishes to record the reason for dissenting from the opinion of the Court.
What seems to be wrong is not the selection process, but the acrimonious confirmations.
They require partisan affirmations, or the majority party will not trust them. They can not hope to get any votes at all from the opposition unless or until it looks like a done deal.