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Jurisdiction, Merits, and Splintered Opinions

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When a judge on a multi-judge court believes the court has no jurisdiction but the majority decides otherwise, what should that judge say about the merits? One school of thought is that he should say nothing, having concluded that the court has no authority to render a decision on the merits. That is the path taken by Justices Scalia and Thomas in today's memorial cross case, Salazar v. Buono.

I appreciate the virtues of consistency, but in this instance I think consistency needs to yield to the institutional function of the court. The primary reason why the Constitution provides for "one supreme court" is have definitive answers to legal questions. Splintered opinions that fail to provide such answers constitute a failure of the institution. Many times judges must accept decisions they believe to be incorrect. Lower court judges must accept the decisions of higher courts. Federal courts must accept the interpretation of state law by the state high court.

The correct course, in my view, is to dissent from the jurisdictional holding but then acknowledge that the decision of the majority is now the law on the jurisdictional point and proceed to the merits. In this case, in my view, Justices Scalia and Thomas should have dissented from part II but then gone on to say whether they concur in part III. If they concurred, part III would be the "opinion of the Court," and there is some good stuff in it.

"Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality." I plan to quote that in future briefs. Alas, I will have to follow the cite with "(plurality opinion)."

Overall, the case is a smackdown of a District Court judge who (1) failed to understand the difference between his injunction and the actual requirements of the Constitution, and (2) failed to modify the injunction when a subsequent enactment (arguably) conflicted with the injunction but not with the Constitution. The case is reminiscent of the recent Ninth Circuit Valdivia case on California parole revocation procedures, except that the Ninth got that one right. (See prior post.) It did strike me as odd, though, that today's opinion lashed the district judge and said almost nothing about the Court of Appeals opinion affirming his order.

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"The correct course, in my view, is to dissent from the jurisdictional holding but then acknowledge that the decision of the majority is now the law on the jurisdictional point and proceed to the merits. In this case, in my view, Justices Scalia and Thomas should have dissented from part II but then gone on to say whether they concur in part III. If they concurred, part III would be the "opinion of the Court," and there is some good stuff in it."

A couple of observations:

1) The prohibition on advisory decisions doesn't apply to individual judges on a particular court, but rather to the court as a whole. Thus, I don't even think that KS's position is yielding to any principle. Scalia had some things to say about what would happen to the Troy Davis case on remand in a concurrence--how is that really any different from a concurrence here?

2) Scalia and Thomas are principled. They have their views and stick to them--even when they could arguably strengthen views that they favor.

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