The Washington Post

An unusual (though not unprecedented) joint opinion in Hobby Lobby

Washington, DC - June 28: US Supreme Court nominee Elena Kagan is sworn inn before giving her opening statement to the Senate Judiciary Committee on Capitol Hill Monday June 28, 2010. (Photo by Melina Mara/The Washington Post) StaffPhoto imported to Merlin on Mon Jun 28 17:15:02 2010 Justice Elena Kagan

A typical non-majority opinion is written by a Supreme Court justice and joined by other justices — the author’s identity is clearly set forth. Both the author and those who join fully endorse the opinion (unless some of the justices join only parts of it), but it’s clear who the author is. Thus, in Hobby Lobby, we see “Justice Ginsburg, with whom Justice Sotomayor joins, and with whom Justice  Breyer and Justice Kagan joined as to all but Part III-C-1, dissenting.” This is largely also true of majority opinions, which are labeled as the “opinion of the Court” but with the single authoring justice specifically identified (“Justice Alito delivered the opinion of the Court”), though some such opinions are labeled “Per curiam,” and thus don’t reveal their authorship.

WASHINGTON, DC - OCTOBER 8: Justice Anthony Kennedy pictured as the nine members of the Supreme Court pose for a new group photograph to reflect their newest member, Elena Kagan, October, 08, 2010 in Washington, DC. (Photo by Bill O'Leary/The Washington Post) Justice Anthony Kennedy (Bill O’Leary/The Washington Post)

But the short Breyer/Kagan separate opinion isn’t Justice Breyer, joined by Justice Kagan, or vice versa; it’s labeled,

Justice Breyer and Justice Kagan, dissenting.

And the text of the opinion fits with the introductory line: It uses “we” (“[w]e need not and do not decide”) rather than the “I” (e.g., “Undertaking the inquiry that the Court forgoes, I would conclude that …”) used in Justice Ginsburg’s opinion. This isn’t unprecedented; the NFIB v. Sebelius dissent was labeled an opinion of Justices Scalia, Kennedy, Thomas, and Alito, and the famous O’Connor/Kennedy/Souter opinion in Planned Parenthood v. Casey was labeled an opinion of all three justices. (“Justice O’Connor, Justice Kennedy, and Justice Souter announced the judgment of the Court and delivered the opinion of the Court.”) And I doubt that it’s particularly telling about anything substantive. Still, it was unusual enough that I thought it was worth a brief mention for the benefit of serious court-watchers.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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