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The last two days in plain English

Last week at the Supreme Court of the United States was certainly a huge one, especially given the decision in Citizens United. But one of the things we SCOTUSbloggers love about the Court is that every week brings its own new, interesting developments.

Take Monday’s short-as-can-be decision in Briscoe v. Virginia.  Now, I and others on this blog have discussed the case from any number of angles (see here, for example).  But for those of you watching and reading out there, Monday’s decision may have slipped right by you – that is how unexpected it was to some of us, in the timing at least.   Why?  Well, because the case was only argued two weeks ago, as discussed here.   Usually, it takes the Court a while to reach agreement about the proper outcome of a case, then draft an opinion. As I discussed last week when explaining why we waited for quite some time for the Citizens United decision, these decisions are extremely important and far-reaching.   But in Briscoe, the Court decided the case quickly and definitively in what Richard Friedman, one of the attorneys in the case, has called a G . . . . VR.

Remember the GVR?  I explained it back in my first discussion of Briscoe, here.    “GVR” stands for “granted, vacated, and remanded,” which is what many Court watchers thought would happen with Briscoe after the decision in Melendez-Diaz (a very, very similar case out of Massachusetts) came down last June. Instead, however, the Court granted cert. in Briscoe only four days after the decision in Melendez-Diaz and agreed to hear the case (hence, the “G”).  On Monday, however, after the parties had briefed and argued the case, the Court VR’ed in a one-sentence opinion.  Although we do not know exactly why the Court granted cert, then vacated and remanded several months later, perhaps it realized that expending more resources to decide the case and write the opinion(s) was unwise and unnecessary, especially when it appears that the Court was unwilling to overrule its decision in Melendez-Diaz.

Can the Supreme Court change its mind?  Sure.  With either outcome in this case, it virtually had to do so.  By G . . . . VRing, the Court seems to have changed its mind about granting cert. in Briscoe.  But had it decided the case and overruled Melendez-Diaz, it also would have changed its mind about a legal standard.  Because of the importance of the rule of law and stare decisis (which engender consistency, fairness, and predictability in the law), the Court may have been reluctant to change its mind so dramatically in such a short period of time (less than a year).

But, you might say, the Court has changed!  Justice Souter retired, and Justice Sotomayor joined the Court!  Yes, the composition of the Court has changed, but the Court itself is an institution, greater than the sum of its parts.  In other words, when we are talking about the Supreme Court, we call it that regardless of who is sitting on the Court at any given moment.  It is important to the rule of law for the Court to be viewed as seamless and enduring, even when members of the Court rotate in and out.

One more note about the Briscoe decision:  The opinion was per curiam.  “Per curiam” means that no Justice is identified as the author of the opinion.  Rather, the opinion is just “by the Court.”  See the glossary here for more explanation.

On to the other decision of the week, this one in Hemi Group, LLC v. City of New York.  In this case, the City of New York tried to use federal racketeering laws (RICO, for those in the know) to go after cigarette retailers who were operating online but out of state.  These retailers were selling cigarettes to New York residents, but they could charge much lower prices because they did not have to collect state and city taxes – the burden of paying the taxes fell on the purchaser, not the vendor. The Second Circuit Court of Appeals allowed the City’s suit to recover lost tax revenues to go forward against the vendors.

But the Supreme Court reversed, saying that RICO did not apply, in part because the vendors were under no legal obligation to collect taxes.  The City had to find a way to collect the taxes from those obligated to pay – the cigarette purchasers.

Two  aspects of the Hemi case are important to note here.  First, the opinion authored by Chief Justice Roberts (the “opinion of the Court in part”) is what we call a plurality.  A plurality opinion is issued when a majority of the Justices do not agree on both the outcome and the reasoning of a case.  In other words, while a majority of the Justices might agree on the outcome of the case, they do not agree on the legal means to the end.  Therefore, some members of the majority will join the plurality opinion as to the outcome, but write a separate concurrence to explain how they (separately) reached that result – which is what  happened in Hemi.  Chief Justice Roberts wrote an opinion, and four Justices agreed with him on the outcome.  Only three, however, agreed with his analysis.  Justice Ginsburg did not agree with a part of his analysis related to causation, and she therefore did not “join” that part of the opinion.  Therefore, the Court was split 4-1-3, meaning that no one opinion commanded a majority.

By the way, as Brian Goldman noted here, pluralities are fairly common.  However, quite uncommon about the Hemi plurality was that the Court did not tell us which parts of the opinion commanded a majority and which parts were only joined by a plurality.  Justice Ginsburg signaled to us in her concurrence which parts she joined and which she did not, but the Court usually includes this information at the beginning of an opinion.  We do not know why the Court chose not to do so here.

The reason why it is important to know what portions commanded a majority is that those portions will become precedential authority, requiring lower courts to follow the rule established or explained in the case.  On the other hand, there are complex rules (outside of the scope of this more general discussion) for figuring out the precedential weight of a plurality opinion.

Another interesting point of note is that Justice Sotomayor did not participate in any aspect of deciding this case because while she was still on the Second Circuit she was a member of the three-judge panel that decided this case.  According to Supreme Court procedure and protocol, she cannot properly decide the case again as a member of the Supreme Court.  This type of situation often arises when a Justice is new to the Court.  Because many of them were judges on the federal courts of appeals before their appointments to the Supreme Court, many of the cases they decided will eventually find their way to the highest Court in the land.  After a year or two, these cases peter out, because the rules for timely filing of appeals do not allow the cases to go on.

In my next post, probably up on Friday, I will discuss some of the issues raised by Kevin’s interview with Barry Friedman (see here and here).  Because Professor Friedman’s book advances some interesting theories and commentary on the role of the Court in society (as well as the role of society in influencing the Court), give that interview a good read.  It is fascinating stuff!