[Jonathan Adler, June 23, 2008 at 5:56pm] Trackbacks
5-4 Split Watch:

Three more decisions were handed down today. One, Sprint Communications Co. v. APCC, was 5-4. In that case, which concerned standing for assignees, Justice Kennedy joined Justice Breyer's majority opinion along with the other three liberal justices.

The other two cases were decided 8-1 and 6-3. Of note, in the latter case, Greenlaw v. United States, Justice Alito dissented joined by noted conservatives Justice Stevens and Justice Breyer (in part).

UPDATE: As a commenter notes, the justices in Greenlaw actually split 7-2. Although Justice Breyer joined three-fourths of Justice Alito's dissenting opinion, he concurred in the judgment of the Court.

Related Posts (on one page):

  1. 5-4 Split Watch:
  2. 5-4 Split Watch:
  3. 5-4 Split Watch:
  4. Is OT2007 Much of a Surprise?
  5. Where'd the 5-4 Splits Go?
  6. Why So Few 5-4 Decisions?:
MarkField (mail):
I don't normally do this, but your 3d sentence just cries out for correction:


Justice Kennedy joined Justice Breyer's majority opinion along with the other three liberal justices.
6.23.2008 7:11pm
E:
There was actually a 8-member majority in The Onion's version of Baze v. Rees: "Supreme Court Rules That Death Penaltiy is 'Totally Badass'".

Pretty important ruling.
6.23.2008 7:12pm
CDR D (mail):
Yeah, and oh, the last sentence, "... Justice Alito dissented joined by noted conservativesJustice Stevens and (in part) Justice Breyer."

Tongue firmly in cheek.
6.23.2008 7:17pm
E:
MarkField, I think it was sarcasm!
6.23.2008 7:18pm
Ex parte McCardle:
In Greenlaw, Breyer concurred in the judgment. Doesn't that make it 7-2?
6.23.2008 7:56pm
E:
Wait, I mis-read MarkField's comment. Nevermind!
6.23.2008 8:01pm
Jacob Berlove:
It absolutely baffles me as to why the dissent failed to issue a footnote emphasizing that while Justice Breyer dissented in terms of the analysis, he didn't dissent as to the outcome. See e.g. Justice O'connor's concurring opinion in Employment Division v. Smith
6.23.2008 10:08pm
DiverDan (mail):
I read the Sprint Communications decision, &thought I'd somehow been transported to Bizarro World -- I actually was convinced that Breyer got it absolutely right, and that the four Conservative dissenters were being far too technical on the issue of redressability -- and Roberts' dissent, in which he asserts that "Respondents have nothing to gain by their lawsuit" conveniently ignores the fact that what the Respondents (the aggregators who took assignments of the claims of pay phone operators) have to gain is performance of their contractual duty to "litigate . . . in the interests of Assignors", and thus avoidance of liability for breach of contract. Am I turning liberal by agreeing with Breyer and friends and disagreeing with Roberts, Alito, Scalia and Thomas? Somebody please tell me that yesterday was opposite day!
6.24.2008 8:46am
mruky (mail):
In fact, Sprint Communications presents a fascinating problem. It is a tough call who got it right. It seems like now it is possible for two straw entities to sue each other based on a dispute or tort that occurred between two non-parties. This could create an interesting market in liability and risk.
6.24.2008 9:04am
DiverDan (mail):
While I continue to agree that Breyer et al. got it right in Sprint, I can see Roberts' point that it would have been so easy to comply with his own fairly restrictive view of standing. When I have brought these kinds of actions, I find that it is much easier to avoid fights over who is the "proper party in interest", and allow the agent to bring suit "in the name of and on behalf of" the real party in interest. Which raises the obvious question, just why did the aggregators think it was so important to justify a trip to the Supreme Court to preserve the right to sue in their own names, when they could have very easily just sued in the names of the individual pay phone operators?
6.24.2008 10:02am
byomtov (mail):
In fact, Sprint Communications presents a fascinating problem.

This is where non-lawyers like me are baffled. I see nothing fascinating about it, and am amazed that four Justices thought the aggregators had no standing, (maybe because they didn't recite the proper blessings, as DiverDan suggests?).

Roberts talks about "common sense" in his dissent, but doesn't common sense also dictate that companies don't usually go to the trouble and expense of bringing lawsuits if they have nothing to gain? I have seen Roberts criticized for using thin procedural arguments to deny plaintiffs access to the courts. Is this another example?
6.24.2008 10:35am