Reading tea leaves

Just for fun, read the post and then follow the link in today’s How Appealing (posted at 12:11 PM by Howard Bashman) which states:

Counting to five under Marks v. United States, 430 U.S. 188 (1977) — now featuring Venn diagrams: Three judges issued separate opinions concurring in the D.C. Circuit’s denial of rehearing en banc in a criminal case today, and those separate opinions make for some very interesting reading.

Then ask yourself :  Why didn’t Justice Sotomayor say,

“You know, we are split and splintered decisions make it real hard for lower courts to apply our law.  So, since no one really knows what rule is best (and frankly this is not a huge deal anyway), I have flipped a coin and decide to side with . . . . My legacy will be just fine even if I don’t write a fancy concurrence setting out yet a third path.”

Has all common sense left the pretty building at 1 First St NE Washington, DC 20543?

RGK

9 responses

  1. Could it be that Justices, including J. Sotomayor, are writing with at least one eye focused upon the next case? Another way of saying this might be that every Justice fancies him/herself as the next Justice Harlan, issuing an unheeded call that survives long enough to be adopted as received wisdom.

    Then, of course, there is the tendency of all trial attorneys (and former trial attorneys) to add their own two cents, regardless of whether it contributes meaningfully to the discussion. See, e.g., this comment.

  2. Strunkl,

    Sure–that makes sense when the case is an early one in a series of cases that are expected to arise in the future. The Freeman decision, however, was not one of those. In Freeman, criminal law practitioners and the lower courts needed one answer and the matter would have faded into obscurity. Because of the concurrence, what we got was “sometimes the plurality is right and sometimes the dissent is right.”

    All the best.

    RGK

  3. Pingback: Counting to five under Marks v. United States, 430 U.S. 188 (1977) — now featuring Venn diagrams | Internet Tax Lawyers

  4. In my limited experience in appellate law, it strikes me that there are two kinds of useful opinions. The first kind is the one that clearly articulates a new majority opinion. The second is the one that includes a clear, logical, and ringing dissent that can be used in future cases.

    Pluralities are a recipe for disaster. For example, If the recent Chaidez decision (133 S.Ct. 1103) was released as a plurality, it would be absolutely useless.

    If the opinions cannot be reconciled, I wish that the courts would simply dismiss the appeal. In the appellate world, the decision you disagree with (or no decision) is better than bad writing.

  5. If the opinions cannot be reconciled, I wish that the courts would simply dismiss the appeal.

    But if that occurs, neither party gets justice; even with the result that the lower court’s decision stands, it’s by copout default, not reasoned decision.

    Maybe the appelate judges, after Recorder Thomas Howell, could be locked in a room and shall not be dismissed until we have a [reconciled] verdict…[;] you shall be locked up without meat, drink, fire, and tobacco. You shall not think thus to abuse the [litigants]; we will have a verdict, by the help of God, or you shall starve for it, save only that a particular ruling will not be demanded, only that one will be rendered.

    [g]

    Eric Hines

  6. Here’s a thought, how about if the Supreme Court were to adopt a rule that if a majority of the Justices cannot agree on a result and a rationale, then the writ will be dismissed as improvidently granted? This thought occurs to me as I consider how not to inflict cruel and unusual punishment as I attempt to get my first year students to understand the World-Wide Volkswagen v. Woodson, Asahi Metal Industry Co. v. Superior, J. McIntyre Mach. Corp. v. Nicastro trilogy of cases on “stream of commerce” personal jurisdiction. The first case actually had a majority opinion and a rationale, though it suffers from the slight difficulty that its author (Justice White) disclaimed its rationale in Insurance Corp. of Ireland v. Companie des Bauxites de Guinee 18 months later. The second case is shockingly unanimous in result, but divides 4-4-1 on the stream of commerce rationale, but the Justices all agree that jurisdiction is unreasonable on general grounds. Then comes the third case, where the court splits 4-2-3 on the rationale, with all nine Justices pretending like the “reasonableness” rationale of the second case.

    Moreover, in every case the Supreme Court or the lawyers “missed the issue” as we law professors like to say. In the first case (World-Wide) the case really had nothing to do with personal jurisdiction. The defendants were trying to get rid of the non-diverse defendants to remove the case to federal court where the jury pool would be less friendly to plaintiffs. It worked. The plaintiffs got skunked.

    The second case (Asahi) is high comedy. The case was tried upon the theory that the malfunctioning valve in the motorcycle tube was manufactured by Asahi Metal Corporation. Apparently after the case reached the Supreme Court, someone came up with the bright idea to show the valve in question to an Asahi engineer. He looked at the valve with a magnifying glass and quickly pronounced: “Oh, this is not our valve.” Apparently it was manufactured by a company with a similar trademark.

    In the third case (J. McIntyre) the court assumed that only one of the defendant’s scrap metal recycling machines had been sold in New Jersey, despite the fact that New Jersey leads the nation in this industry. Just for a moment, consider the likelihood that an English manufacturer that viewed the US market as a significant one sold ONLY ONE such machine in the state where most of the action is. Sigh, Pat.

  7. Pat,

    You write: “Here’s a thought, how about if the Supreme Court were to adopt a rule that if a majority of the Justices cannot agree on a result and a rationale, then the writ will be dismissed as improvidently granted?”

    Oh, yes, that would be a great rule. However, I bet there would be fights among the majority about whether they disagreed on the rationale! If two agreed that they disagreed, but two said they agreed that the didn’t disagree, and one thought that in some applications they disagreed and in some they disagreed, what would be the result? At least, it would be more amusing that the present situation. God knows we need more amusement from that bunch.

    All the best.

    RGK

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