The Volokh Conspiracy

Palin-Jindal,

I have read many thousands of court of appeals opinions, and I have never before seen a concurrence on these grounds. Maybe it's just me, but I think it's "unusual." And particularly interesting coming from a chief judge.

It is true that Justice Scalia often refuses to join parts of opinion that cite legislative history, but I'm not sure what you think that shows, or what you think that has to do with relying on dissents for characterization of majority opinions. (Plus, it would be quite unusual and noteworthy if a lower court judge picked up Scalia's practice.)

I think it shows that Edmondson is not the first jurist to concur with minor reservations because of methodology. But I see where you're coming from.

For those who are interested, this appears to be the context of Powell v. Barrett:

The plaintiffs in a civil rights case argued that Bell v. Wolfish, 441 U.S. 520 (1979), was applicable with respect to a jail's strip search policy.

The majority disagreed (pages 21-23 of the slip opinion)—relying on Justice Powell's dissent in Bell to find that the Supreme Court's holding was not as broad as the plaintiff believed:

If more is needed, it can be found in Justice Powell’s dissenting opinion in Bell, the significance of which has been underappreciated. Justice Powell dissented for one and only one reason, which was that the Court did not require reasonable suspicion for conducting the strip searches in that case. His opinion, a model of brevity, states in its entirety:

I join the opinion of the Court except the discussion and holding with respect to body-cavity searches. In view of the serious intrusion on one’s privacy occasioned by such a search, I think at least some level of cause, such as a reasonable suspicion, should be required to justify the anal and genital searches described in this case. I therefore dissent on this issue.

Bell, 441 U.S. at 563, 99 S. Ct. at 1886 (Powell, J., concurring in part and dissenting in part). Obviously, Justice Powell would not have dissented from a holding that the Court had not made.

Granted, it can be risky to place too much reliance on dissenting opinions because they sometimes take a Chicken Little or doomsday approach, exaggerating aspects of the majority opinion in order to have a bigger target to attack. Justice Powell’s dissent in Bell is not of that type. It does not attack the majority opinion. Instead, it states in three sentences that it disagrees with only one aspect of the decision and that is the failure to require “some level of cause, such as a reasonable suspicion” before the “anal and genital searches described in this case” can be performed. Id. If the majority had required reasonable suspicion for body cavity inspection strip searches of pretrial detainees, Justice Powell would not have dissented at all. And Justice Marshall would have had one less thing to complain about in his separate dissenting opinion. Id. at 578, 99 S. Ct. at 1894 (Marshall, J., dissenting) (“Here, the searches are employed absent any suspicion of wrongdoing.”).

From his perspective inside the Court, Justice Powell (like Justice Marshall) had a far better sense of the majority’s decision in Bell than any of us lower court judges could, and he understood that the decision permitted the body cavity inspection strip searches without reasonable suspicion. Confronted with the dissenting statements, the majority, if it had not intended to permit those searches of pretrial detainees without reasonable suspicion, would have noted as much in its opinion. It would have been a simple matter to do that. The majority, however, did not change its opinion to state that reasonable suspicion was required because Justice Powell’s (and Justice Marshall’s) reading of its opinion was accurate. The Bell decision means that the Fourth Amendment does not require reasonable suspicion for this type of strip search in detention facilities.

(footnote omitted).

I can see the efficacy of the majority's approach—why would Justice Powell dissent if the majority required reasonable suspicion?

But I can also see Chief Judge Edmonson's objection, though it seems to have less force when examined in context.

I would also observe the curious footnote that I omitted previously:

"Some, but by no means most, of the discussion in this part of the opinion is borrowed, occasionally verbatim, from Evans, 407 F.3d at 1283–92 (Carnes, J., concurring specially), with the gracious consent of the author of that opinion."

Why is this curious? Simple. The author of the Powell opinion is none other than Judge Carnes.

I have to agree with the objection in full. It is an unsound practice to attempt to divine court intents from dissent(s) and it was also unnecessary for the 11th to do so. To quote the decision (from right before it introduces the dissents) "[i]t really is that simple."

"The answer is no, he does not claim that. Nor does he do that."

Well,

"To be able to write an opinion solely for oneself, without the need to accommodate, to any degree whatever, the more-or-less differing views of one's colleagues; to address precisely the points of law one considers important and no others; to express precisely the degree of quibble, or foreboding, or disbelief, or indignation that one believes the majority's disposition should engender -- that is indeed an unparalleled pleasure." (Scalia, The Dissenting Opinion, Journal of Supreme Court History, 1994.)

Apparently, this was also Scalia's view on concurrences (interview with Garner, at 06:48):

"If other people want to write other dissents or concurrences, who cares? . . . I happen to be of the old-fashioned view that a judge should not join any opinion that he does not believe is correct, on not just the principle point but on all the points of law that are set forth. I have never joined an opinion that I did not think was entirely correct. And you can criticize me therefore not just for the opinions that I have written but for the opinions that I've joined. I happen to think that that approach not only conforms with our history -- I mean after all we came out of a system in which each judge wrote his own separate opinion so you knew what each judge thought -- but I think it is also necessary in order to hold judges to account. You shouldn't be able to join an opinion that you don't really believe in and then later write an opinion that contradicts that. You should be accusable of being inconsistent. . . . I don't really like writing a separate concurrence and I only write them to maintain my integrity. If I don't agree with the analysis of the majority, I should say so."

Scalia's attacks on Stevens for going back on his own concurrences (for example, just last term in Baze v. Rees, Scalia writes witheringly of Stevens "repudiat[ing] his prior view" on capital punishment) are consistent with this mode of thought.

I have to agree with CrazyTrain here. A dissent is not authoritative. However, it can be authority for the type of analysis done here--just as a law review article or other source would be.

In Bryant v. Rich, 530 F.3d 1368 (11th Cir. 2008), Edmondson thinks it is proper to rely on Wright &Miller, Federal Practice and Procedure as persuasive authority.

Yet, if a U.S. Supreme Court justice writes a dissent that explains the majority opinion better than a the majority author, it is jurisprudentially unsound to look at.

Wright &Miller good. U.S. Supreme Court justice bad.

So make sure you don't rely on the Edmondson in Powell v. Barrett, because Edmonson would think it was jurisprudentially unsound.


BTW, I think Edmondson was proper in relying on Wright &Miller.

Does this shed any light on the controlling dissent by Scalia in Lawrence v. Texas?

6112,

Because usually Chief Judges try to be good institutional players; they try to play nice with the other judges.