Agreeing to Disagree

Originally appeared in the October 1998 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Agreeing to Disagree

BY ANDREW J. McCLURG

Ever notice how the Supreme Court can’t seem to agree on much? The court’s modern opinions are often a maze of fractured voting.

Rumor has it an early justice once proposed that unanimity be required in all decisions, but they voted on it and ended up split 1-1-1-1-1-1-1-1-1. They tried to settle it with Rock, Paper, Scissors, but one justice used real rocks and an ugly brawl broke out, after which the idea was dropped.

I can understand when the justices disagree about highly-charged constitutional issues, but they seem to rarely agree about anything.

Consider a case like Idaho v. Coeur d’Alene Tribe (1997), a dispute over the ownership rights to the bottom of a lake. No doubt this was important litigation, but it’s not exactly Marbury v. Madison, or even the lesser known Marbury’s Cousin Murray v. Madison. Yet look at the splintered voting record:

Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and III, in which Rehnquist, C.J., and O’Connor, Scalia and Thomas, JJ., joined, and an opinion with respect to Parts II-B, II-C, and II-D, in which Rehnquist, C.J., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment …

It goes on, but you get the idea. Way too confusing. At the end I expect to see, “See next month’s opinion for answer.” We need some clues to figuring out these mega-part opinions, something helpful like “PLAINTIFF WINS,” or better, “Instructions to User: Ignore everything except footnote 10.”

Unfortunately, things are getting even worse. Check out the voting lineup in the just-decided Weefus v. Dufus:

Kennedy, J., announced the judgment of the Court in which no one agreed except Mrs. Kennedy and even she wasn’t too crazy about parts of it. Scalia, J., booed.

Rehnquist, C.J., dissented vigorously from Part XXXVII-A,E,I,O,UandsometimesY-iiiiiiiiii until informed there was no such part, so he wrote his own and unleashed a vicious assault against it.

Breyer, J., concurred in Part II-A, dissented from Part II-B, was mildly amused by Part II-C, wadded up Part II-D and stuck it under his desk to keep it from rocking and used Part II-E to make paper airplanes that he and Thomas, J., shot down with rubber bands. Ginsburg, J., joined in the dissent from Part II-E so she’d have paper for her own planes.

Stevens, J., dissented, changed his mind and dissented from his dissent. On petition for reconsideration, he dissented from the dissent to his dissent, at which point he lost track of which side he wanted to win and abstained.

O’Connor, J., concurred in part in footnote six, dissenting from it not being numbered seven. Souter, J., dissented from O’Connor’s partial concurrence, stating: “The issue of whether footnote six should be renumbered was not raised in the trial court and is not properly before the Court.” O’Connor then filed a Supplemental Dissent canceling her RSVP to Souter’s dinner party on Saturday.

Part I of Conclusion To Humor Column: I should point out that I love Supreme Court justices. Part II: None of the above is intended to reflect on the personality of any particular justice. Part III: Except maybe one. Part IV: See next month’s column for answer.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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