On Thursday the Supreme Court issued two statements: Pereida v Wilkinson and United States Fish and Wildlife Serv. Sierra Club, Inc. The latter case was Justice Barrett’s first majority opinion. The vote at the Sierra Club was 7-2. Judge Breyer, along with Judge Sotomayor, disagreed for fairly technical reasons. Judge Breyer agreed with the majority that the case should be referred back to the lower court. Indeed, Judge Breyer left open the possibility that he would “agree” with the majority opinion. His disagreement was hyper-technical
It’s something of a tradition that a judge’s first decision should be unanimous. The first majority opinion of Justice Kavanaugh, Henry Schein Inc. v Archer & White Sales Inc., was unanimous. The same applies to Justice Gorsuch.
I suspect the Chief would have assigned this case if there had been a unanimous majority opinion from Justice Barrett’s first session. Perhaps there were no majority opinions from Barrett’s first session. Or maybe the Sierra Club started out as a majority opinion, but Breyer and Sotomayor dropped out. Still, given this close disagreement, I was surprised that Judge Breyer would go to the trouble of contradicting Judge Barrett’s first majority opinion. He could have swallowed his disagreement and made a warm gesture to his new colleague in a rather inconsistent case. Instead, Judge Breyer disagreed.
Now Justice Kagan joined the majority opinion. I have no idea what their views on the substance are. But I imagine Justice Kagan could remember the stab when Justice Scalia deviated from her first opinion. Perhaps Justice Kagan joined Justice Barrett as a courtesy. If so, how do we explain the vote by Judge Breyer, who historically used his votes strategically to form coalitions?
It’s possible Justice Breyer saw the writing on the walls. The conservatives have no interest in forming consensus with him. The boss can count to 5 without Breyer’s help. And Justice Breyer may have already told President Biden that he intends to retire. At this point, Judge Breyer can be IDGAF. He’s checked out. Let’s call it SCOTUS Senioritis. Indeed, Judge Breyer’s objection was originally not respectful. His opinion originally ended with “For these reasons I disagree.” At 9:49 a.m. on March 5, the Tribunal revised the opinion. Now Breyer’s dissent was respectful.
The fact that Breyer made this change suggests that something is happening in terms of collegiality.
Mike Dorf offers a similar explanation:
Maybe I’m wrong. Perhaps Breyer and Kagan have been voting 100% on their legal conscience all along, and it just looks like they are curtailing at times to maintain their credibility and influence with the least conservative of their conservative counterparts. But from where I am, it looks like they did – at least sometimes.
Now we come to my hypothesis about Breyer: he has largely given up moderating his best overall judgment in hopes of moderating the court as a whole. In a place where the best thing to hope for in an ideologically high stakes case is swinging the chief to convert a 6-3 loss to a 5-4 loss, the game is the candle not worth.
Whatever the explanation, perhaps Justice Kagan joined Hope to woo Justice Barrett. Interestingly, Kagan was the last new judge to give an initial majority opinion on a non-unanimous case. Scalia disagreed; maybe it still stings. If Justice Kagan is actually trying to charm Justice Barrett in hopes of moderating her voices in some later cases, I wish her the best of luck in the campaign, but I’m not very confident that she will succeed.
It is always risky to read so much about subtle changes in the decisions of the Court of Justice. But those two disagreements on Thursday subsided.