Today the Court decided one case, San Francisco v. EPA. As I predicted, the majority opinion was assigned to Justice Alito. (My other predictions for the other October sitting cases look to be on track.) But the breakdown was unusual. Here is the description from the syllabus:
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS and KAVANAUGH, JJ., joined, in which GORSUCH, J., joined as to all but Part II, and in which SOTOMAYOR, KAGAN, BARRETT, and JACKSON, JJ., joined as to Part II. BARRETT, J., filed an opinion dissenting in part, in which SOTOMAYOR, KAGAN, and JACKSON, JJ., joined.
The majority votes to reverse the Ninth Circuit. Justice Gorsuch does not join Part II, and does not write separately to explain why. But Justice Gorsuch does join Part III of the majority, which explains why the Court will reverse the Ninth Circuit. Justices Barrett, Sotomayor, Kagan, and Jackson only join Part II, but they do not join Part III. As I read the opinion, the Barrett quartet would affirm the Ninth Circuit. By all accounts, Barrett did not "dissent in part." She outright dissented. If anything she concurred in part, dissented in part, and dissented from the judgment.
I agree with Ed Whelan's analysis:
Justice Alito's majority opinion reverses the Ninth Circuit ruling. In what she labels an opinion "dissenting in part," Justice Barrett and the three justices (Sotomayor, Kagan, and Jackson) who sign on to her opinion "join Part II of [Alito's] opinion." But they disagree with his argument in Part III and thus would affirm the Ninth Circuit.
Perhaps I'm missing something, but it sure seems to me that Barrett's opinion is a straight dissent.
Relatedly: As I understand the traditional practice, any opinion that is a dissent in part must also be a concurrence in part. But the fact that Barrett agrees with part of Alito's reasoning does not mean that she concurs in any part of his judgment.
There is some drama brewing here. Justice Gorsuch did not explain why he did not join Part II. That failure to join would have rendered Part II as not part of the majority opinion. But the Barrett quartet came in to join Part II, making it a majority opinion. Yet, the Barrett quartet disagreed with everything else in the majority opinion, including the bottom line judgment.
There is another possibility. At this point, Justice Barrett's slide to the left is unmistakeable at this point. I wrote about this years ago, but people are slowly starting to see it. I don't think she will go full Souter, but will be, at best, a Justice O'Connor. Or maybe a Justice Frankfurter, whose only jurisprudence is one of restraint. For the time being, these sorts of locutions ("dissenting in part") mask the slide. At the end of the term, when statistics are assembled about Barrett's voting pattern, this case may be scored as a 9-0 reversal. But that scoring is only superficial. For those who care, on FantasySCOTUS, I scored this case a 5-4 reversal.
Early in her tenure, Justice Barrett urged us to "read the opinions." I've tried, truly. But she writes less than any other member of the Court. According to Empirical SCOTUS, Barrett writes the shortest opinions on average. She has only ever dissented from denial of cert once. And she is silent on the shadow docket. When Barrett does write separately, it is often unclear which parts of the majority she actually agrees with. The Trump immunity decision is a leading example.
Speaking of Barrett's writings, where is her book? The lucrative deal was announced in April 2021 before she had written a significant majority opinion. Four years later, the book is not on the shelf, and I cannot find a publication date anywhere. By contrast, Justice Gorsuch has already co-authored two books during his tenure, and Justice Jackson published her memoir within two years of her confirmation. Justice Kavanaugh's book deal was announced in June 2024, with a publication date in 2025 or 2026. I know people get upset when I talk about Barrett's publication record as a professor, but her productivity on the bench is much the same. She has not given any speeches of note in years, and had only a light-hearted conversation at the Federalist Society National Lawyers Convention in 2023.
Nominees for the Supreme Court do not change much when they join the Supreme Court. People are who they are. I say this not to criticize any current member of the Court, but so that we are all aware of what happens the next time a vacancy arises.
Update: A colleague wrote:
I don't think ACB's (and the other dissenters') move re Part II of the plurality opinion actually works. There are not five votes for that rationale among justices who also agreed with the judgment. Because Part II does not support any aspect of a judgment that a majority of the court agrees with, I still think it has the precedential effect of a plurality. It *might* be different if the judgment had changed because of Part II, but it didn't. And I don't think dissenters can make plurality opinions majority opinions just by "joining" that part of the opinion any more than they can do so by expressing their agreement with that part in dissent.
Whatever the intent was, I don't think it succeeded.
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