5 votes, four in the plurality and one in the dissent

[Jonathan Miller]

What Ed's comment misses, however, is the need for a judge and the 
judicial system to act consistently.  Regardless of whether one uses the 
term "stare decisis", individual Supreme Court justices have what might be 
called a "moral" obligation to act consistently with statements that they 
have made in the past, or explain why they are not.  I would argue that 
this in turn carries an obligation for lower court judges, who need to 
consider how the Supreme Court will likely decide an issue in the future 
when that is clear, regardless of whether it is formally a "precedent".  
The lower court judge who knows with a high level of certainly how five 
justices of the Supreme Court will decide the case before him creates 
unnecessary disparity and procedural delay when he fails to act 
accordingly. -- A concern that is heightened in a system where the Supreme 
Court hears few cases and hence there is greater need for consistency in 
the lower courts.  If split between two cases, five justices have clearly 
expressed their views on a matter, and done so in a considered fashion, 
perhaps they have not produced what we traditionally think of as a binding 
precedent, but the lower court judge who fails to treat such as statement 
with the same respect as a binding precedent is not respecting the 
institutional needs of the judiciary.

Jonathan Miller
Southwestern


> 
> Eugene writes:
> 
> * * *
> 
> (2)  I think Mark is probably right that the City of  Lakewood
stat> ement
> probably shouldn't yield a contrary result -- but does  anyone take
a> 
> contrary view?
> 
> _____________
> 
> I do.
> 
> While the views of dissenting judges -- like the views expressed in
law> 
> review articles, in opinions vacated for lack of subject matter
> jurisdiction, or in speeches that lead to recusal -- offer a basis for
> predicting how a judge will decide a case in the future, if there is
an> y
> "law" to the law of precedent, it is one that, at a minimum,
distinguis> hes
> between the views upon which a judgment in a particular case rests and
> those upon which a judgment does not..
> 
> Thus the Marks formulation (repeated in Lakewood) concerning how to
tre> at a
> splintered decision is neither sloppy nor incomplete in looking only
to> 
> those who concurred in the judgment; instead, it is an application of
t> he
> broader principle that legal views that are not part of the rational
> supporting the judgment lack binding precedential force.  Statements
by> 
> dissenting judges, by definition, do not support the judgment.  Put
> somewhat differently, if even unanimous dicta by the Supreme Court
lack> 
> binding precedential force because they are not part of the rational
> supporting the judgment, how can statements uttered in dissent have
> precedential force?
> 
> I understand that the distinction between holding and dictum is mushy,
> and
> that some deny that it exists at all.   I also understand that some
> question whether there is any "law" to the law of precedent.  But for
> anyone who thinks that there is some "law" in the law of precedent and
> some
> basis to the distinction between holding and dictum, statements in
diss> ents
> cannot be given the force of binding precedent, can they?
> 
> There is a technique by which the Supreme Court has, in at least one
ca> se,
> effectively attempted to bestow binding precedential force on a
plurali> ty
> opinion by adding the views of dissenters.  In Williams v. Taylor, 529
> US
> 362 (2000), a portion of Justice O'Connor's opinion was labelled the
> "Opinion of the Court" by counting dissenting justices.  In my view,
th> e
> court was wrong to do so in Williams, and I am glad to see that
Justice> 
> Thomas did not formally join Part II (of parts thereof) of Justice
> O'Connor's opinion in Hamdi and that no part of her opinon was dubbed
a> n
> "Opinion of the Court."
> 
> (This discussion, I believe, also implicates the debate over whether
ju> dges
> on multimember courts should adhere to the longstanding traditional
> practice of outcome voting or move to a different voting protocal of
is> sue
> voting, but I will leave that aside at least for the moment.)
> 
> 
> Ed Hartnett
> Seton Hall
> 
> 
> > 
> 
> _______________________________________________
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