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

[Trevor Morrison]

Another example of sub-optimal Supreme Court practice along these lines is 
Justice Thomas's opinion in Grutter, the Michigan Law School affirmative 
action case from last Term.  As many on the List know, Thomas styled his 
opinion a partial concurrence, partial dissent.  He plainly dissented from 
the Court's judgment, which was to uphold the constitutionality of the Law 
School's affirmative action program.  His "concurrence" was limited to his 
rather strained reading (some might even say willful misreading) of certain 
statements in Justice O'Connor's majority opinion, which, according to 
Thomas, placed certain limits on the constitutionality of affirmative 
action.  Most notably, Thomas said he "agree[d] with the Court's holding 
that racial discrimination in higher education admissions will be illegal 
in 25 years."  He claimed to find this "holding" in O'Connor's statement 
that the Court "expect[ed] that 25 years from now, the use of racial 
preferences will no longer be necessary to further the interest approved 
today."  I don't think anyone can seriously believe that Thomas's 
characterization of the Court's statement is anything other than a 
distortion, and in that sense his claim to "concur" in the Court's 
"holding" on this point is quite unfortunate.

Of course, Thomas's vote was not necessary to achieve a Court majority, so 
his "concurrence" didn't trigger the Marks/Lakewood rule.  But I think his 
characterization of his opinion as a partial concurrence is simply a more 
extreme version of the problems Ed identifies in cases like Williams v. Taylor.

Trevor Morrison



Trevor W. Morrison
Assistant Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
607-255-9023
607-255-7193 (fax)

At 05:10 PM 6/29/2004 -0400, Edward A Hartnett wrote:

>Eugene writes:
>
>* * *
>
>(2)  I think Mark is probably right that the City of  Lakewood statement
>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 any
>"law" to the law of precedent, it is one that, at a minimum, distinguishes
>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 treat a
>splintered decision is neither sloppy nor incomplete in looking only to
>those who concurred in the judgment; instead, it is an application of the
>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 dissents
>cannot be given the force of binding precedent, can they?
>
>There is a technique by which the Supreme Court has, in at least one case,
>effectively attempted to bestow binding precedential force on a plurality
>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, the
>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 an
>"Opinion of the Court."
>
>(This discussion, I believe, also implicates the debate over whether judges
>on multimember courts should adhere to the longstanding traditional
>practice of outcome voting or move to a different voting protocal of issue
>voting, but I will leave that aside at least for the moment.)
>
>
>Ed Hartnett
>Seton Hall
>
>
>
>
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