Unusual Concurrence:
From Chief Judge Edmondson of the Eleventh Circuit, concurring in the en banc Fourth Amendment decision in Powell v. Barrett:
I do not write in a complaining spirit. I unhesitatingly concur in the Court's judgment and in almost all of today's Court opinion. I write separately because I think it is jurisprudentially unsound to look at a Justice's dissenting opinion to determine what the Supreme Court has decided in a case.
To the degree that our Court today seems to make some verifying use--I think unnecessarily--of this approach, I cannot join it.
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.)
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:(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.
There may be instances in which using a dissent to understand a majority's holding is inappropriate, but this is not one of them (assuming again that the court here is giving us a complete picture of the Supreme Court case at issue).
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.
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.
But seriously, citing to a dissent as persuasive authority isn't terribly unusual when its explanation of the point at hand is clearer than the majority. Something else must have been going on between the members of the panel for this to have gone public in such an odd way? This is one of those cases where being a fly on the wall in chambers might have been fun.
Why does it matter that he is Chief Judge? It's not like Chief Justice of the Supreme Court (which is an appointed permanent position). Judges on the Courts of Appeals serve temprorary terms. Tjoflat was the Chief Judge before Edmondson, etc.
Because usually Chief Judges try to be good institutional players; they try to play nice with the other judges.
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