FW: Counting to 5 for a binding precedent -- do the dissenters' votescount?

Douglas Laycock DLaycock at law.utexas.edu
Thu Jun 16 13:17:37 PDT 2005

I would be very surprised if the Court has been consistent about this.
But the magic number is five, and my intuition is that if five clearly
agree on a well considered proposition, the fact that some are in
dissent does not reduce the effect all that much.

The discussion in Guest emphasizes unnecessary to the holding and lack
of consideration; it does not appear to say much by way of discounting
the dissenters.  And pretty clearly the Court in 2000 would have
overruled a 1966 precedent dispensing with the state action requirement
if they could not get rid of it any other way.

I suppose there is a sense in which anything a dissenter says is dictum,
but Supreme Court dictum gets taken pretty seriously.  So maybe the way
to pose the question is whether a proposition accepted by five justices
in separate opinions, some of which are dissents, gets less weight than
a proposition accepted by five justices in separate opinions, all of
which are support the judgment.  One way to approach it is to think
about cases with these patterns, and ask how they have been treated.

Arnett v. Kennedy is a due process case where the concurrers and
dissenters were treated as precedent and the plurality was not.  "This
view garnered three votes in Arnett, but was specifically rejected by
the other six Justices."  Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 540.  There were other cases in addition to Arnett to support the
proposition of the six, so the six were not the only authority relied
on, but those cases had also made their peace with the Arnett plurality.

Comparing Arnett to Guess also highlights that there are degrees of
dictum.  There are advisory opinions way beyond the facts, there are
alternate grounds for decision, and there are different majorities on
different issues.  In Arnett, the plurality said that if the legislature
creates a substantive right, it can specify the procedure by which that
right can be taken away.  The concurring and dissenting opinions all
rejected that proposition.  The concurring opinions said the procedure
Ohio had provided satisfied due process; the dissenters said it didn't.
So there were two issues; the Court split 6-3 on one (legislature
doesn't get to decide) and 3-3 on the other (process here was good
enough); the plurality didn't have to reach the second issue.  Each vote
on each issue was fully necessary to that justice's vote on the case;
there is no reason to treat these votes as ill-considered.  If the
opinion had been assigned to one of the concurring justices, we would
have gotten a six-justice majority rejecting the legislative supremacy
theory, a plurality finding the procedures adequate, and the actual
plurality cast as the concurring justices, supporting the judgment on
different grounds.  It is not clear why we should give significantlly
different weight to the actual line up and the alternative lineup that
would have emerged from a different assignment of the opinion.  

You might keycite Wallace v. Jaffree, where five justices (four of them
dissenting) indicated that they would uphold a neutrally administred
moment of silence.  Certainly people in the field know that five
justices said that, and I would be surprised if lower courts have not
cited it for the proposition that five justices said that.

    Less famously, in Bowen v. Roy, my recollection is that five
justices, some of them dissenting, expressed an opinion on what would
happen if an issue turned out to still be alive on remand.  (I am vague
because this is from memory; I haven't gone back to dig this out of the
multiple opinions.)  And I think the trial judge on remand treated those
five as telling him what to do.

Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, June 16, 2005 12:50 PM
To: Conlawprof at lists.ucla.edu
Subject: Counting to 5 for a binding precedent -- do the dissenters'

        I've long assumed that when one is trying to find what binding
precedent a Supreme Court case sets, one doesn't count dissenting votes
for that proposition -- so if a 4-Justice plurality plus one dissenter
assert something, that something isn't binding precedent.  (Of course it
could be a good predictor of how those Justices will vote in the future,
but that's a somewhat different matter, especially when some of the
Justices have retired, or when a lower court judge is trying to decide
what he has a professional obligation to do rather than what is least
likely to get him reversed.)  I had recalled that City of Lakewood v.
Plain Dealer Publishing had said this, but now that I've reread it, I'm
not so sure ("The dissent suggests that the Kovacs plurality's
distinction of Saia is somehow not good law because four other Justices
(three of whom were in dissent) adopted the far broader rationale that
Saia was actually repudiated. JUSTICE WHITE's interpretation of Kovacs
does not square with our settled jurisprudence: when no single rationale
commands a majority, 'the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgmen[t] on the
narrowest grounds.' Marks v. United States, 430 U.S. 188, 193  (1977).
Clearly, in Kovacs the plurality opinion put forth the narrowest
rationale for the Court's judgment.").  And while Marks focuses on the
concurrences, it doesn't seem to foreclose the possibility of including
the dissents as to other matters.

        Is there some case that does squarely say that a
4-in-the-plurality-plus-1-in-the-dissent agreement is not a binding
holding?  If you can pass along an answer off the top of your head, I'd
be very much obliged.

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