The case against four person majorities on the Supreme Court
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In June, the Supreme Court in Ziglar v. Abbasi — a case brought by detainees in the wake of the 9/11 attacks alleging grave mistreatment at the hands of federal executive branch officials — constricted the availability of damage claims against federal government officials for constitutional violations.

The Court also ruled that, at least under existing law, government officials within a single branch of government would not know that conspiring to deprive individuals of their constitutional rights would constitute violation of a federal anti-conspiracy statute, and thus would be immune from suit under the statute.

The vote of the Supreme Court was 4-2. A vote of four justices is usually not enough to constitute a majority, and a majority vote is needed to establish binding Supreme Court precedent.

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Yet here, oddly, four justices — what I have called a “minority majority” — is technically enough to constitute a majority. This point only serves to augment complaints about the case, which critics see as an opinion joined by conservative-leaning justices that will curtail civil rights.

 

In a law review article a few years ago, I argued that minority majority opinions should receive limited precedential effect.

That should be the case here: Lower courts should read the Supreme Court’s opinion narrowly, and the Supreme Court itself should feel free to revisit the issue anew in the future.

An opinion of the Supreme Court commands binding precedential respect among lower courts (and even in later cases at the Supreme Court itself) if it attracts at a minimum a majority of votes. Given that the Supreme Court consists of nine justices, this ordinarily makes five votes the key to a precedential opinion.

Sometimes, however — whether because of illness, death, or recusal — one or more justices are unable to hear a case. Congress has contemplated this possibility, and by statute has set the minimal quorum for the Court to conduct business at six justices.

The majority vote rule applies even where fewer than the full complement of nine justices hears a case. Sometimes this does not affect the ordinary requirement that five votes are required for a majority.

In the not uncommon setting where a single justice is absent (for example, the period during which the seat formerly held by the late Justice Antonin Scalia lay vacant), five justices are still required as a majority of the eight sitting justices.

However, where two or three justices are absent, only four justices constitute a majority of the sitting justices, notwithstanding the fact that four justices do not constitute a majority of Supreme Court seats.

Ziglar v. Abbasi was an instance of three absent justices. Justice Neil Gorsuch had yet to be seated when the case was argued, and did not participate in the decision of the case, justices Sonia Sotomayor and Elena Kagan recused themselves.

While justices don’t explain why they have decided on recusal, Sotomayor heard arguments in an earlier iteration of the case when she was a judge on the U.S. Court of Appeals for the Second Circuit. (She was elevated to the Supreme Court before the Second Circuit could decide the case so that, ironically, the two remaining judges—meeting Congress’s minimal quorum requirement of two judges for a court of appeals panel—decided the case unanimously.)

Kagan presumably played some role in the case while she was U.S. Solicitor General.

This left six justices — Chief Justice John Roberts, and justices Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, and Samuel Alito — to resolve the case.

Kennedy wrote the Court’s opinion for the four-Justice majority — himself, Roberts, and Thomas and Alito — holding that (i) actions against federal officials for damages arising out of alleged constitutional violations are severely constrained absent a congressional statute, and (ii) executive branch actors were immune from suit over a statutory claim that they had conspired to deprive the plaintiffs of their constitutional rights.

In fact, whereas Kennedy, joined by Roberts and Alito, supported remanded the case to the lower courts to determine whether some of plaintiffs’ constitutional claims for damages was cognizable, Thomas asserted in a separate opinion that such a remand was unnecessary since the claims in question were not legally cognizable.

Nevertheless, “in order for there to be a controlling judgment,” he “concur[red] in the judgment vacating and remanding” those claims “as that disposition is closest to my preferred approach.”

Thomas also expressed doubt over the Court’s overall approach to government officials’ immunity from suits alleging constitutional violations, doubt that—ironically, given the disposition of the case at hand—might in the long run allow more such suits to move forward.

Breyer, joined by Ginsburg, dissented on both grounds.

Cases, such as Ziglar v. Abbasi, that are decided by minority majorities are problematic.

On the one hand, they challenge the legitimacy of the Court. One is left to wonder whether the issues would have been decided the same way were the full Court to have participated in the vote.

Here, perhaps the answer to that question is yes. If one assumes, as was the case with the six actual votes, that Republican-appointed justices would have voted with the majority and Democratic-appointed justices with the dissent, then the final vote would have been 5-to-4 — the same outcome but by a closer vote.

This suggests holding such cases (or selecting other cases that raise the same legal issues) such that more justices can indeed participate in the case disposition. On the other hand, there is a limit to how often the Court can function while declining to decide cases.

Moreover, some cases — such as this one, alleging a major conspiracy among numerous government officials, some at the highest levels of government — clearly deserve the Court’s attention.

In addition, Congress has the freedom to amend the statute and increase the minimum quorum necessary for Court business; the fact that it has not done so suggests some obligation on the part of the Court to decide such cases.

Another conceivable solution could be for lower courts not to treat minority majority opinions as binding precedent (as has happened on very rare occasions). But this again flouts Congress’s decision to allow the Court to decide cases with a quorum of six justices.

I have previously suggested a compromise position. Lower courts should treat minority majority opinions as binding, but read them narrowly.

In the case at hand, that might mean accepting the clear holding of the Court as disallowing constitutional claims for damages on the grounds actually raised by the plaintiffs in the case, but pausing before reading the opinion more broadly to curtail constitutional claims against federal officials for damages across the board beyond the setting raised by the particular facts in the case.

The Supreme Court should take a similar tack, or arguably not to be bound by a minority majority opinion and instead feel free to chart a new course if the same issues arise in the future.

Is it reasonable to expect the Supreme Court to change its view if it revisited the issue in Ziglar v. Abbasi with a full complement?

Probably not.

The existing votes fall along the lines of the party of the appointing President, with four Republican appointees voting to restrict constitutional claims for damages and two Democratic appointees voting to sustain them. If the remaining three justices similarly fall in line, the vote would be 5-4 to curtail such claims.

Still, even if the bottom line holding would not vary, the 5-4 vote would signal more clearly than Ziglar’s 4-2 vote the extent to which the issue is contested.

And, if indeed the additional votes turn out not to break along party lines, then perhaps the need to construct a majority based on Thomas’s reluctant vote could be obviated.

Jonathan Nash is the Robert Howell Hall Professor of Law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on twitter at @JonathanRNash 


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