Supreme Court Shows Why the Answer to Most Legal Questions is “It Depends”

U.S. Supreme Court

Whatever happened to “Appellant wins”?

Back in 2003, in McConnell v. Federal Election Committee, the U.S. Supreme Court cleared up a major legal dispute over campaign financing. Er, well, maybe not completely cleared up.

The basic question was whether the McCain-Feingold Act, a federal statute that imposed restrictions on political contributions, violated the First Amendment free speech rights of potential contributors.  A challenging issue no doubt, but certainly not too tough for the mighty U.S. Supreme Court to resolve, right?

With nine justices voting, the result could have been as simple as 8-1, 7-2, 6-3, or 5-4 in favor of one side or the other.  The nine wise ones chose a slightly more complicated path. Here is the Court’s actual voting lineup straight out of the case:

STEVENS and O.CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O.CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA § 305, and in which THOMAS, J., joined with respect to BCRA §§ 304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O.CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§ 311 and 318, concurring in the result with respect to BCRA § 318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and § 311, in which opinion SCALIA, J., joined as to Parts I, II.A, and II.B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J.,joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA § 323(e) and BCRA § 202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA § 305, in which GINSBURG and BREYER, JJ., joined.

Who won?  I have no idea.

For embodying in a single voting lineup the reason why the most accurate answer to most legal questions is “It depends,” this case gets into the Strange Judicial Opinions Hall of Fame.  If members of the world’s most powerful tribunal are unable to agree on what the law means, how could one expect poor law students to do so?

McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003). Thanks to Elise Hendricks.

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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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