Monday, April 27, 2020

Does a dissent have the "force of law"?

By Josh Blackman - April 27, 2020 at 02:21PM

Today the Supreme Court decided Georgia v. Public Resource.Org, Inc. The Court held that under the government edicts doctrine, the annotations beneath the statutory provisions in the Official Code of Georgia Annotated are ineligible for copyright protection. My co-blogger noted the unusual 5-4 voting alignment. Chief Justice Roberts wrote the majority opinion, joined by the four most junior justices: Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justices Thomas dissented, joined by Justice Alito, and in part, by Justice Breyer. Justice Ginsburg wrote a separate dissent, joined by Justice Breyer.

The majority and dissent disagreed on many points. For example, was it relevant that the annotations lacked the "force of law"? Chief Justice Roberts concluded this factor was not relevant. Why? Because concurrences and dissents, which also lack the "force of law," cannot be copyrighted. The Chief explained:

Banks, following Wheaton and the "judicial consensus" it inspired, denied copyright protection to judicial opinions without excepting concurrences and dissents that carry no legal force. 128 U. S., at 253 (emphasis deleted). As every judge learns the hard way, "comments in [a] dissenting opinion" about legal principles and precedents "are just that: comments in a dissenting opinion." Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 177, n. 10 (1980). Yet such comments are covered by the government edicts doctrine because they come from an official with authority to make and interpret the law.

Here is the full quote from Footnote 10 of Railroad Retirement Bd. v. Fritz (1980):

The comments in the dissenting opinion about the proper cases for which to look for the correct statement of the equal protection rational-basis standard, and about which cases limit earlier cases, are just that: comments in a dissenting opinion.

Roberts may have some personal familiarity with this case. Justice Rehnquist wrote the majority opinion in December 1980. At the time, a young John Roberts was his law clerk.

Justice Thomas vigorously disagreed with the majority on this point:

The majority finds it meaningful, for instance, that Banks prohibited dissents and concurrences from being copyrighted, even though they carry no legal force. Ante, at 15. At an elementary level, it is true that the judgment is the only part of a judicial decision that has legal effect. But it blinks reality to ignore that every word of a judicial opinion—whether it is a majority, a concurrence, or a dissent—expounds upon the law in ways that do not map neatly on to the legislative function. Setting aside summary decisions, the reader of a judicial opinion will always gain critical insight into the reasoning underlying a judicial holding by reading all opinions in their entirety.

Thomas further explained his viewed in footnote 6, which Justice Breyer dissented from:

Understanding the reasoning that animates the rule in turn provides pivotal insight into how the law will likely be applied in future judicial opinions.6

6For instance, this Court has not overruled Lemon v. Kurtzman, 403 U. S. 602 (1971), which pronounced a test for evaluating EstablishmentClause claims. But a reader would do well to carefully scrutinize the various opinions in American Legion v. American Humanist Assn., 588 U. S. ___ (2019), to understand the markedly different way that this precedent functions in our current jurisprudence compared to when it was first decided. Moreover, sometimes a separate writing takes on canonical status, like Justice Jackson's concurrence regarding the executive power in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 634–638 (1952) (opinion concurring in judgment and opinion of the Court); see also Katz v. United States, 389 U. S. 347, 360–361 (1967) (Harlan, J.,concurring) (reasonable expectation of privacy Fourth Amendment test). Still other times, the reasoning in an opinion for less than a majority of the Court provides the explicit basis for a later majority's holding. See, e.g., McKinney v. Arizona, 589 U. S. ___, ___ (2020) (slip op., at 5) (discussing Ring v. Arizona, 536 U. S. 584, 612 (2002) (Scalia J., concurring)); Estelle v. Gamble, 429 U. S. 97, 102 (1976) (incorporating into the majority the Eighth Amendment "evolving standards of decency" test first announced in Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)). Even " 'comments in [a] dissenting opinion,' " ante, at 15, sometimes reemerge as the foundational reasoning in a majority opinion. See, e.g., Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___ (2019) (discussing Nevada v. Hall, 440 U. S. 410, 433–439 (1979) (Rehnquist, J., dissenting)); Lawrence v. Texas, 539 U. S. 558, 578 (2003) ("JUSTICE STEVENS' [dissenting] analysis, in our view, should have been controlling in Bowers  [v. Hardwick, 478 U. S. 186 (1986),] and should control here"). These examples, and myriad more, demonstrate that the majority treats the role of separate judicial opinions in an overly simplistic fashion.

Justice Thomas, who is often in dissent, may a different vantage point than the Chief.

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