Nancy Leong // 6/29/17 //
Justice Gorsuch has already written seven separate opinions—that is, opinions other than majority opinions—in his 78-day tenure on the Supreme Court.
This is a lot of opinions. Statistics available from SCOTUSblog reveal that Gorsuch wrote as many or more separate opinions in his first 78 days on the court than Chief Justice Roberts (five), Justice Breyer (seven), Justice Kagan (four), and Justice Kennedy (three) wrote during the entirety of OT 2015. (Justice Scalia wrote only three separate opinions during that term, but for obvious reasons he was not on the bench for the entire term.) If we were to extrapolate Justice Gorsuch’s output over an entire term, the only Justice who would write a similar number of separate opinions would be Justice Thomas, who, in OT 2015, wrote 32 separate opinions (18 concurrences and 14 dissents).
How should we think about our newest Justice's prolific output? Certainly there is value to separate opinions. Such opinions strengthen the adversarial system by giving lawyers and litigants insight into the reasoning of the jurists on our highest court. Our legal discourse is better when both lawyers and laypeople understand which arguments are persuasive and why, and which are less so. And at a structural level, our highest court should not be immune to criticism from within by those best situated to understand and expose its flaws.
Moreover, there is no denying that many separate opinions become enormously influential. Think of Justice Harlan's 1967 concurrence in Katz v. United States, which proposed a test for when a search has taken place within the meaning of the Fourth Amendment. That test has now been the law for nearly fifty years. Other separate opinions have become powerful statements of social aspiration. Think of the 85-year-old Justice Blackmun's declaration, in a dissent from a denial of an inmate's appeal: "I no longer shall tinker with the machinery of death." The words are more poignant now, 23 years later, as the death penalty yet survives in 32 states and the federal system.
In short, there are good reasons to value separate opinion writing from members of the Court, especially if some of that writing offers candor and insight that we might otherwise lack.
But the benefits of separate opinions are by no means universal or unequivocal. Separate opinions can have drawbacks. They emphasize the individual views of justices rather than the importance of the Supreme Court as an institution. They can undermine public confidence in the authority of the Court. They can reflect, or appear to reflect, advisory opinions and activism that many of the justices claim to disfavor. They can serve as a distraction with little or no practical significance. They allow individual justices to create or perpetuate misimpressions about the views of the Court as a whole or individual colleagues, who, for a variety of prudent reasons, may not be inclined to respond in public. And they can have the effect of magnifying what are in fact relatively minimal differences of opinion among members of the court.
A number of prominent jurists have encouraged judicious use of separate opinions. Ruth Bader Ginsburg wrote in 1990, years before she became Justice Ginsburg, that “United States appellate judges might profitably exercise greater restraint before writing separately.” Likewise, Judge Richard Posner has urged Supreme Court judges to consider: “Is this dissent or concurrence really necessary?”
It seems that at times separate opinions are valuable and desirable, but at other times they hurt more than they help. At a minimum, separate opinions are not an unqualified good.
With respect to Justice Gorsuch’s separate opinions, we have a relatively small sample size thus far. (At his current pace, that will soon change.) Yet there are indications that at some of his separate opinions are of questionable value.
Consider Pavan v. Smith, in which the Court issued a per curium opinion holding that Arkansas must list the non-biological parent in a married same-sex couple on a child’s birth certificate—given that it already does so for opposite-sex couples and has decoupled birth certificates from biological parentage. For example, in situations where an opposite-sex couple conceives a child via artificial insemination, the state lists the biological mother’s husband on the birth certificate, but would not do the same for the biological mother’s wife. The per curiam opinion noted that invalidation of this discriminatory statute is obviously compelled by the Court’s decision in Obergefell v. Hodges, which requires equal governmental treatment of married same- and opposite-sex couples. Moreover, this ruling complies with basic principles of common sense: birth certificates confer parental rights in situations ranging from medical treatment to school enrollment and thus invoke the wide “constellation of benefits” linked to marriage.
Yet Justice Gorsuch dissented—joined by Justices Thomas and Alito, themselves both frequent authors of separate opinions. He criticized the Court for applying “the strong medicine of summary reversal” and argued that Obergefell is consistent with “a birth regime based on biology.” Gorsuch’s opinion drew strong criticism from commentators; one said that the opinion “indicates an eagerness to read Obergefell with implausible narrowness.” Whatever one might think of the merits of the opinion, it is unclear what benefit it hopes to achieve—other than signaling a highly strategic approach, grounded in manifest bad faith, to cabining or even gutting Obergefell.
Another concern with writing large numbers of separate opinions is that the quality of a justice’s opinions may suffer. In fact, a casual read of Justice Gorsuch’s separate opinions reveals several mistakes, to say nothing of phrases that most legal writing professors would rightly describe as “clunky.”
Consider, for example, this statement from Pavan, which I have quoted in its entirety: “So that in this particular case and all others of its kind, the State agrees, the female spouse of the birth mother must be listed on birth certificates too.” That’s a sentence fragment, although it’s hard to tell because the sentence as a whole is so poorly crafted. Another sentence from the same opinion exhibits faulty parallelism: “In an opinion that did not in any way seek to defy but rather earnestly engage Obergefell . . . .” Presumably Gorsuch wishes to create a parallel between “defy” and “engage,” but as written the parallel is instead between “seek” and “engage.”
One might argue that these errors are unimportant—and compared with the substance of the dissent, they are—but when a justice on our highest Court makes multiple errors in a three-page opinion, it reveals something lacking in the opinion-writing process. A similar pattern of typos and grammatical errors has emerged in the Trump administration as a whole, and Seth Masket has compellingly argued that these errors belie a larger problem with substantive implications.
Finally, it is worth thinking about the issue of separate opinions through the lens of gender. Of course, it would be premature to read too much into existing data. As Steve Vladek observed, Gorsuch has already written more separate opinions than Justice Kagan wrote in her first two years on the Court. While this is true, the complete picture is more complicated. The two most frequent authors of separate opinions are Justices Thomas and Alito, but Justices Ginsburg and Sotomayor also write a lot of separate opinions. At the other end of the spectrum, while it is true that Justice Kagan rarely writes separately, Justice Kennedy is also an infrequent author of both concurrences and dissents.
But when women are already outnumbered two to one on the Court, and when—assuming that Justice Gorsuch continues his current pattern—the three most frequent authors of separate opinions are men, we see a continued skewing of our legal discourse at the highest level toward the thoughts, ideas, views, and words of men.
Research has demonstrated that men talk and write more than women in a wide range of forums. On the Supreme Court, this dynamic already arises in the number of times men and women justices are interrupted at oral argument. In their study of interruptions during the Roberts Court era, Tonja Jacobi and Dylan Schweers found that, while women made up on average 24 percent of the justices, 32 percent of interruptions were of the female justices—but only 4 percent of interruptions were by the female justices. In other words, each female justice was interrupted an average of three times more frequently than her male colleagues.
In the 2015 term, for example, both Justices Kagan and Sotomayor were interrupted more than ten times by Chief Justice Roberts and by Justices Alito and Kennedy. By contrast, any individual male justice was interrupted no more than seven times by all women combined.
The disparity in interruptions is not trivial. As Jacobi and Schweers explain: “This pattern of gender disparity in interruptions could create a marked difference in the relative degree of influence between the male and female justices.” For instance, justices often communicate with one another through their questions and the advocates’ answers to them, and “[w]hen a justice is interrupted, her point is left unaddressed.”
If current trends in separate opinion authorship continue, male justices will disproportionately dominate not only the oral discussions of the Court, but also its written output.
What is the solution to this gendered skewing of legal discourse? A recent article suggested that perhaps women should interrupt more, rather than men interrupting less. And one might use the same reasoning to argue that the women justices should write more separate opinions.
But an unexamined proliferation of opinions for their own sake hardly seems like a desirable outcome. Indeed, given the increasing length and density of Supreme Court opinions, one wonders whether it might be better for the most loquacious members of the court to say a little less.
It would well serve both the men and women of the Supreme Court to consider carefully how much they are writing, and why, and to whom. And in particular it would behoove our newest justice to reflect upon his reasons for writing separate opinions, and whether the quality and quantity of those opinions enhances the institutional legitimacy of the Court.