Will is joined by University of Wisconsin law professor Nina Varsava, where they discuss how to make sense of fractured Supreme Court opinions in light of Marks v. United States. They also discuss the applications of Marks's "narrowest grounds" test in the recent jury-trial decision of Ramos v. Louisiana, with plenty of Dworkin along the way. Later in the episode they dig into Nina's infamous paper on judicial rhetoric.
Will is joined by University of Wisconsin law professor Nina Varsava, where they discuss how to make sense of fractured Supreme Court opinions in light of Marks v. United States. They also discuss the applications of Marks's "narrowest grounds" test in the recent jury-trial decision of Ramos v. Louisiana, with plenty of Dworkin along the way. Later in the episode they dig into Nina's infamous paper on judicial rhetoric.
Case audio from Oyez.org
Will Baude: Welcome to Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host, William Baude, and each episode, I discuss with top legal minds a Supreme Court case they believe is misunderstood.
[Case Audio]: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed.
We'll hear arguments next, and remarks against the United States.
Will Baude: I'm here with Nina Varsava from the University of Wisconsin, who's written a lot of really interesting things about precedent and judicial decision-making, and I'm really excited to talk to her about them. Welcome, Nina.
Nina Varsava: Hi, Will. Thanks. Thanks a lot for having me.
Will Baude: Thank you. So, the general framework for these conversations is we start with a case that we think is misunderstood, talk just briefly about what the conventional understanding of the case is, and then what you think is missing from the conversation. And, at least here, I know there are a lot of different implications we can go from there.
But in the case we want to talk about is a case called Marks v. United States, which is, I think, not a case most students encounter in their first year of law school. It's sort of like an advanced case. It comes up for advanced problem. What's the problem the case is about?
Nina Varsava: Yeah. I think that some students may never encounter it in law school.
Will Baude: Maybe you're right.
Nina Varsava: I do teach it in my Civil Procedure II course, and some people have argued that it should be in con law class. Anyway, Marks v. United States was decided in 1977. It's a case, substantively, that's about the First Amendment and law restricting of seen speech. It's also about due process and the retroactive application of law. If you were just to read the decision, that's what you would say it's about. But what Marks has come to be most known for and what it's most often cited for now is this approach that was articulated there about how to discern the precedential effect of plurality decisions. Also, the question of just whether plurality decisions are binding at all.
And the reason why this question was important in this case is because the petitioner Marks was relying on a case, Memoirs v. Massachusetts, which was a plurality decision. And the courts below, so the district court and the Sixth Circuit Court of Appeals, said that Marks doesn't get to rely on that case. It wasn't law, because there was no majority opinion. The Supreme Court says that Memoirs was the law at the relevant time, so when the conduct occurred, Memoirs was the law, and so Marks had a right to its benefit. Specifically, just in one line, the court said that, when the court fractures, the controlling effect can be gleaned from the position or the opinion that concurs in the judgment on the narrowest grounds. And then it pretty much moves on. It does apply this test of Memoirs v. Massachusetts without much difficulty, but these words would be come to known as the narrowest grounds test, or the Marks rule.
And let me just quote exactly what the court said, because these words have causes judges a lot of distress, and commentators have debated about what exactly this can mean. The court said, "When a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five justices, the holding of the Court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds."
Will Baude: Yeah. This is amazing, and this is one of these times. I doubt, when the court wrote that sentence, that they knew that this was going to be one of the most-cited sentences of anything they were doing in that decade.
Just to make sure everybody has the problem in their minds, most cases people think about, there are nine justices, there are two sides. One of the sides has five or more justices on it, and the other side has four or fewer justices on it, because there are two sides, so one of the sides has to have at least five, right? Those are the easy cases. We're like, "Okay, this is five-four, six-three, or it's unanimous." How do we get to a world where we don't have five?
Nina Varsava: We get to a world where we don't have five when we have at least one concurrence in the judgment, right? Basically, if you have five judges who all agree, for example, that the lower court should be reversed, they could have five different reasons or rationales for why that is so. You could potentially have five separate opinions all agreeing on the result, but disagreeing substantially on how to get there.
Will Baude: Yeah. Sometimes, of course, they could all still come together on one thing. They could all say, "We at least agree on this much," but sometimes, they want to agree on that much, so two justices who have a very different view than the others.
Nina Varsava: Yes. And related to that, maybe we'll talk about this more when we get into the weeds, but judges can agree in part with one another, or concurrence could agree in full, but just add something. But they can also do that expressly or not, and there's also a question of whether we should trust the justices to explicitly sign on to parts. Or if we can read and say, "Okay, this concurrence calls itself a concurrence in the judgment, but actually, it agrees an important part with another concurrence."
Will Baude: Mm-hmm (affirmative). Right. In a way, we're starting here from just however the justices self-identify, right? They self-identify or collectively identify. They say, "This is the opinion of the court," or they say, "I'm not joining this party opinion." And then we start from there, but maybe we shouldn't take that at face value.
Nina Varsava: Yeah. I think we shouldn't stop there. I think, too often, we do stop there. Yeah, I think too much weight is given to labels like this meta-text of opinions, which is the labeling without always paying attention to real, substantial disagreement or agreement among opinions, because judges could also disagree but say they agree, right? You can have a special concurrence saying that I agree, but then the justice says something that indicates, "No, they do not agree, so what do we make of that?"
Will Baude: Yeah. Justice Kennedy was famous, infamous for this, I think. He would join a five-four opinion that would say something very dramatic, more dramatic for Justice Kennedy is what I'm saying, and then he would say, "I completely agree with the majority, and I add these thoughts." And you're like, "How can you think this and this?" He would say, "Well, I do."
Okay. We're getting there already. Yeah. This seems like a simple rule, and I know people who love this rule, because no matter how fractured the court is, they're like, "Now, I know what to do with it. It gives me a crazy, fractured opinion, and I just look at the position taken by the members who concurred in the judgements on narrowest grounds." What's wrong with this picture?
Nina Varsava: One of the big problems with the Marks rule is that it can be interpreted in a variety of ways. I'm interested in the people you know who really like this rule and think that it's easy how they would apply it in some difficult cases. In some cases, it does seem to be easy. Even those cases that it seems to some to be easy, other people think that it leads to crazy implications about precedential effect. But there's different ways that you can read the Marks rule. There's a narrow reading of the Marks rule, which is, I think, very conservative, which basically says that, "Okay, if we have a majority of the justices who concurred in the judgment who actually agree on some principle, then that's binding." It may look like a plurality decision, but basically, people have called this a false plurality, because we can reconstruct a majority view. I think that's fine as far as it goes. I don't think we need Marks to know that a majority view, if all the justices in the majority concurred in the judgment, it's binding. On that interpretation, Marks doesn't do much work, but it's also relatively unobjectionable.
But there are other readings of Marks. One is, for example, that the narrowest view is the opinion that would reach the outcome in the case in the fewest subsequent cases. This often happens in a four-one-four decision. Maybe we can get into some examples, but just to stay abstract for a moment, you can have four writing a plurality opinion, one writing a concurrence in the judgment, and then four in the dissent. And the one agrees with the outcome, but the opinion is narrower in the sense that, in more cases like this which differed slightly, the concurrence of one would actually end up going with the dissent, so they have a narrower view in that sense.
There are other views still of Marks. One similar, and it probably aligns pretty closely with the one I just articulated, looks for the median justice, or sometimes people call this the swing vote, and we should follow that opinion as the binding one.
Will Baude: Okay, yeah. Can we do two examples that come to mind to think about this? One is Supreme Court's decision in Bakke, where it first confronts the affirmative action programs. You have, oversimplifying, four justices who say, in general, "Institutions can do what they want. They can have affirmative action." And four justices, in general, who say, "No, that's a form of race discrimination, so it's almost always forbidden." And you have Justice Powell who says, "It's allowed sometimes. It's not allowed for purposes of remedying societal discrimination, but is allowed for purposes of diversity," and it creates all of modern affirmative action doctrine.
[Case Audio]: There is no opinion of the court supported by a majority, and accordingly, other justices will state their dissenting and concurring opinions in due course following that.
Will Baude: I guess we're supposed to think he's the narrowest in the sense that he rules in favor of the University of California, but he would rule in their favor less often than the other people, who would've said they could do whatever they want. On the other hand, everybody else has a very simple rule, and he has the most complicated and strange rule that's produced five subsequent Supreme Court cases. That doesn't seem very narrow.
Nina Varsava: Right, but you often have that dynamic, so there's other examples of this. I'll go back to Bakke in a second. Freeman is like this, Freeman v. United States. Sotomayor had strange view, which eight justices disagreed with, but she was in the middle, so she had been taken as representing the binding view.
[Case Audio]: In the plurality's view, in every case, the judge must exercise discretion framed by the guidelines to impose an appropriate sentence, regardless of whether the conviction is obtained by trial or by plea. Justice Sotomayor has filed an opinion concurring in the judgment, but outlining a different approach.
Nina Varsava: Apodaca is like that as well, with Powell concurrence of one, articulating a view that many had treated as binding. But Bakke, yeah. Lower courts, many did say that Powell's opinion was binding under Marks. Some said that can't be the case, because of some of the reasons that you suggested, I think. But the Supreme Court itself commented on this briefly, and I have a quote here from the court in Grutter. Am I pronouncing that right, Will?
Will Baude: I don't know. I think so.
Nina Varsava: Okay. Okay. In Grutter, the court said, in relation to Bakke, and the question of Bakke's precedential effect has divided lower courts, the Supreme Court said, "It's not useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it."
Will Baude: What does that mean?
Nina Varsava: The court there is quoting, I think, a court of appeals who had said something like that, that "we don't need to pursue Marks to the utmost logical possibility." I think the court is hinting I think the court is hinting here that Marks's guidance, don't take it too seriously if it doesn't make sense then.
Will Baude: Yeah.
Nina Varsava: Yeah. Don't try to follow it when it doesn't actually allow you to follow a decision in a reasonable way. But it's a weird thing to say if you think that Marks really is a strict rule to follow, right? It's weird to say that, "Well, if it's hard, then don't bother."
Will Baude: Right. And it's especially weird for the Supreme Court to say, given that they said the thing in Marks. If they thought there was something else to say, they could say that instead. It's one thing for a lower court to have to say, "Look, this is what the Supreme Court has said, but I don't totally understand it, so I'm going to move on." But you'd think if the Supreme Court had a better idea for how we should decide, they could just tell us.
Nina Varsava: Yeah. The Supreme Court hasn't had many opportunities to do that, and it never has, which has led me to think that courts and commentators have probably made too much of the Marks rule, and justices recently have, I think, suggested that as well.
Will Baude: I want to do one more quick example before we get [inaudible 00:13:27]. The other example that comes to mind is McDonald v. the City of Chicago, where the Supreme Court holds that the Second Amendment, right to keep and bear arms, is incorporated against the states, and part of it has majority opinions. They have five justices who agree, it's incorporated to the Fourteenth Amendment. And then they get to the question of what actual clause of the Fourteenth Amendment incorporates it, and they have the same problem where four justices follow incorporation precedent to say it's incorporated by the Due Process Clause, and one justice, Justice Thomas, says, "No, no. I would reject all of our due process precedents and say it's actually incorporated by the Privileges and Immunities Clause, and I would overturn the Slaughter-House Cases and 150 years' precedent." And then four justices say it's not incorporated.
If I'm in a lower court trying to figure out if it was relevant, which clause of the Constitution incorporates the right to keep and bear arms. For instance, the Privileges and Immunities Clause, which Justice Thomas would use, applies only to citizens, whereas the Due Process Clause applies to all persons, including immigrants and noncitizens. I guess maybe I would think... Under one view, I would think Justice Thomas's view is the narrowest grounds, and that I could only hold the right incorporated for citizens, because that's Justice Thomas. He would bowl for the plaintiffs in the fewest number of cases. But on the other hand, saying that Justice Thomas, who is not the swing justice, he's the anti-swing justice, and his opinion would overturn 150 years of precedent. Saying his is the narrowest ground seems weird.
Nina Varsava: Yeah. I haven't studied this case, and I don't know what courts have done with it, but it does raise another criticism of Marks and a different interpretation of it, which is that you should follow the opinion that's narrowest in the sense that it's most minimalist, that it's most tied to the facts of the case, and that it... Yeah. For example, it might overturn the least amount of precedent. In that sense, then it looks like the plurality of four might be binding, but I'm not sure what courts have done with McDonald.
Will Baude: Yeah. Me either. I'm not sure, honestly, how much it... You need particular facts for it to come up, so maybe we just don't have to get into them.
Okay. Can we do better? What's your solution to all this? What's your take on the right way to think about this?
Nina Varsava: Yeah. I don't know if I have a satisfying solution, but I think that we could argue and pay attention to evidence from the lower courts and the Supreme Court to suggest that Marks isn't really a binding rule at all. And I think there's multiple different ways where we can get to that conclusion. We can start with some evidence, just that there's not convergence. There's not convergence around this as a norm that means a particular thing. Also, if we care what the justices think, the justices, on various occasions now, some of them have said that Marks isn't really a rule, and have even suggested that maybe it's empty.
For example, in the oral argument in Hughes v. United States, and this was a case from 2018 where the court specifically granted cert on a question about Marks. The court was asked to clarify Marks, and the court said, "Okay." But then, during all argument, Breyer said... He basically threw up his hands and said, "What do you want from us? We can't give you an algorithm for how to follow precedents. That's what you learn how to do in law school and after. Yeah, sometimes it's hard, but I don't know..." He said something like, "I don't know what I would say in this case."
[Justice Breyer Audio]: Look, I don't know what I'd write in this case. The reason I would write if we have to get to this issue, the reason I don't know is because I think law is part art and part science, and you learn in law school and thereafter how to read an opinion. There are no absolute rules. Marbury v. Madison, two-thirds of it is not necessary to the conclusion. So, should we pay no attention to it? Of course we pay attention to it. And then I can cite five, but I won't, where it may be that, on this matter, there was a unanimous court, but nobody believes it, because it wasn't, you see, and they all go off. And Powell, of course, is in part a key, because he had a sensible view, and the public, the lawyers, the clients, the other judges are the ones who tell us that over time. If you ask me to write something better than Marks, I don't know what to say except what I just said, which will help nobody.
Nina Varsava: Ultimately, the court didn't say anything about Mark's case. It said, "Thank you very much for all the careful briefing about Marks. Now, we're going to move on, decide this case on the merits." Recently, in the case of Ramos, which came out in the spring of 2020, Justice Gorsuch, to the shock of some of his colleagues, but joined by Breyer and Ginsburg, said that one particular plurality decision, which was that issue in that case, the plurality decision with Apodaca, he said, "Apodaca isn't precedent at all." This case was all about whether to follow Apodaca or how to justify overruling it. Gorsuch said, "We don't need to follow it or justify overruling it, because it's not a precedent at all." And there were three justices in the dissent who said, "What the heck are you talking about? Of course plurality decisions are precedent, and of course Apodaca is." But I think we get the sense that the court is really fractured around the question itself, of what Marks means and what's the precedential value of plurality decisions.
Will Baude: Yeah. I guess this is the simple-minded defense of Marks. Not my view, but [inaudible 00:19:16] probably know, is something like, "Look, sounds like the court is really fractured." And at that point, they could spend a lot of time trying to craft a compromise about exactly what they can join, or they can just push it out the door and be like, "This is where we stand," and let the Marks rule clean it up. The advantage of the Marks rule would be... Obviously, when the court is so fractured, they might not be in the best position to broker their own compromise, what their decision is. Maybe it's more effective or more honest or something if they just push it out the door, and then we can later use the Marks rule to create precedent out of that. Whereas if we take the Gorsuch approach, what's the point of deciding the case?
Nina Varsava: I'm actually on board with, I think, everything you said in the view where you said that some people might say in defense of the Marks rule. I think that's all fine. I think that the court should issue plurality decisions if it's truly fractured in the way it is. I think the Marks rule is one way that lower courts can try to, like you said, clean up the mess. I think there's also other ways, and I think whatever way they decide, whatever approach they decide to use, they have to justify it, and a justification is not... I don't think a good justification is trying to use a textualist approach to figure out exactly what these 30 words in the case of Marks mean.
Will Baude: Right. But there do seem to be some very different approaches you could have at that point. Justice Gorsuch's approach is something more like, "Well, just ignore it. We'll take the opinions for their persuasiveness. Thank you very much, Justice Powell. We'll read what you wrote, but it's not entitled to any formal weight if you couldn't get five." And then obviously, there were other... I think this is one of the competing approaches. It's more like a legal realist approach. You just ask, if the court that wrote this opinion had this case again, what would there be five votes for?
Nina Varsava: Yeah. I'm not a realist. I know that you are, in some regards. At least, I've heard you said that. Yeah. I'm not taking a realist approach to this. I think that Gorsuch, he didn't say this, but if we give him a... My terrible reading of him is that he's saying, at least in a case like Apodaca where there's no justification in following it, to disregard it as a precedent. He says some pretty peculiar things like, "Surely, one justice can't set precedent," and he says that this is a novel view. That's not a novel view, but it is a criticism of Marks, and it's a criticism of particular applications of Marks.
You might think that, in some cases, where, for example, you can reconstruct some majority view from a plurality decision, or some majority agreement of precedent, or you might say that, "Well, majority would've had to agree on this principle." Take it even further, you might just say, "Well, this is the decision in that case. These were the facts. How can I reconstruct that case in such a way where a legal principle can justify it?" This is a Dworkinian approach that I've been toying with to plurality decisions. And sometimes, Marks might help you get there, but sometimes, I think that you could follow a plurality decision and say that there is no way to reconstruct this that would really be true to Marks, but we can reconstruct it in another way. Basically, I think that Marks is one tool in the toolbox to reconstructing plurality decisions. Sometimes, it's justifiable to use it. Often, I think it's not.
Will Baude: Good. Yes. We've talked about Ramos a little bit. Now, just for people who don't know, Apodaca and Ramos are the questions about 12-person juries and the... 12-person juries? Unanimous juries? Unanimous juries.
Nina Varsava: Yeah, yeah. Unanimous juries.
Will Baude: Okay. I always get the two. Unanimous juries. And the question is whether state juries have to be unanimous, and eight justices agree that you should have the standard for federal juries and state juries, right? Four think both have to be unanimous, and four think neither has to be unanimous, and then poor Justice Powell thinks we should have a higher standard for federal juries and state juries. One approach, I guess, is to woodenly follow the Marks rule and say, "Justice Powell's opinion is a precedent. It's the narrowest ground." Another approach is to go the Gorsuch route, which is to pretend the whole thing doesn't exist, because get five votes for any one opinion so we can just kick it aside. What's the Dworkinian approach that's less dismissive than either of those? Not say the answer, but how do we think that through from a Dworkinian way?
Nina Varsava: Yeah. I think the Dworkinian approach would be consistent with Gorsuch's approach here, but of course, Gorsuch didn't frame it or articulate it in that way. I don't think a Dworkinian approach would care if the precedent was coming mainly from one justice or two or three justices, but we could see or add to Gorsuch's view that there are no high-level legal principles which fit with the rest of legal practices, cases, and laws, and the Constitution. That can justify the outcome in Apodaca. It's an error, and we should set it aside. That's what Dworkin would say. This is too bad that this is going to become a relic, but it's just not worth saving anymore, because it does not fit with our legal principles. If we could come up with some legal principle to justify it, then that would be great. Doesn't look like we can. Even the dissent in Ramos, who wants to follow Apodaca, doesn't really try to salvage Apodaca in that way. It basically defends its view of following it based on reliance interest, not on any legal principles that would save it.
Will Baude: Just to check, why would it be too bad? It seems like part of what the court is saying is, "Here's this decision, which we think is a stake that's introduced a sort of error into law, and now, we're cleaning it up, we're working the law pure." Right?
Nina Varsava: Yeah. My understanding of Dworkin is that he thinks that, if we reject a rule that was relied on in the past, there is some cost, because there's a cost inconsistency in the integrity sense. We have to admit, basically, that there's something that we're not going to incorporate into our understanding of law today. The cost is just in consistency. We are getting a different outcome for the defendant in this case than we got in Apodaca. Because it's substantively just, I think most people would agree that that's a good thing. But if you care about consistency for its own sake, and Dworkin kind of does, I think, for him, it would still be too bad that we can't save that precedent.
Will Baude: Right. Or too bad that we got the precedent wrong in the first place?
Nina Varsava: Definitely too bad. Yeah. The best scenario would be that we got everything right in the first place. But Dworkin's whole view is... Yeah. It's basically the idea that we didn't, so we have a second-best justification for the laws that we have.
Will Baude: Right. I guess this is also... This shows the way which these questions about Marks [inaudible 00:26:40] broader questions about other kinds of precedent. One of the decisions after Ramos the court has to confront is whether to apply its own decision retroactively to other people, those convictions. Now, it's an inconsistency. Mr. Ramos and people lucky enough to be tried after him get more rights than people who were tried earlier. One worry about that would be now, it's inconsistent, I think, for no good reason. You might try to then retroactively go give the rights to everybody you can. I guess that would be the Dworkinian approach, would be to say, "Once you've decided a case, once you have a real precedent, you ought to at least try to go back and give as many people as possible the same treatment."
Nina Varsava: Yeah. I think that could go both ways, but yeah, I think that that would be the more likely answer, unless you think, "Well, that's going to change again next year." But yeah, [inaudible 00:27:31]. This is going to be the law going forward. It would be better. Now that we know that this is the right outcome and we have the right principles, it would be better to apply that to as many people as possible. But anyways, that would be my view, and that does seem to be part of what the dissent is frustrated about. If we'd gotten the right correctly this time, then shouldn't we apply it to everyone that has been denied the right in the past?
Will Baude: Right. Then, the court in the subsequent case, Edwards v. Vannoy, doesn't do that. They say, "No, no. We refuse to apply this right retroactively," and then some of the justices who were on different sides of Ramos are now on the opposite sides of how to think about that. It seems like it actually raises some of the same... At least three questions. Was there a precedent here? Should the precedent be overruled? And if so, should it be overruled retroactively? There may be remarkably little consistency about the answers to each of the three questions.
Nina Varsava: Yeah.
Will Baude: I don't know if this is [inaudible 00:28:29] or what. I guess part of the broader question here is about justices as individuals versus as part of an institution. One vision, this would be Justice Gorsuch's vision, each justice takes an oath to the Constitution, so they've just got to do their best to answer these questions. The fact that they frequently end up fracturing in these ways that produce unpredictable outcomes, that's just the cost of doing business.
Nina Varsava: Whose view did you say... Who did you attribute that to?
Will Baude: I attributed that to Justice Gorsuch. Maybe I'm wrong to do so. I'm just guessing.
Nina Varsava: [inaudible 00:29:03]. Kagan said something very similar to that in Edwards v. Vannoy, right?
Will Baude: What are you thinking of?
Nina Varsava: Well, she says that "our job is to take each case as it comes and decide it as best we can in that instance." Yeah. Rather than having some kind of intrapersonal stare decisis across time. No, you're just looking at the law and applying it to the case. If you changed your mind if you were in the dissent last time, that doesn't matter.
Will Baude: Yeah. Yeah, nobody can build up capital for future cases by being right before. Well, I guess it's related to the Marks problem in the sense that, when the justices are confronting the case, you got five people who agree on the outcome, and they don't agree on the reasons. To what extent should you lie and sign on to reasons you don't agree with to serve the public good of having a five-justice opinion? Or to what extent should you just say, "We've just fractured, and we don't have an agreement. I'm sorry that makes everybody's lives harder, but that's the way it is"?
Nina Varsava: Yeah. That's interesting. I think lying is different from compromising.
Will Baude: Okay. What's the difference?
Nina Varsava: You might agree with the outcome of the case, and you might agree with some of your colleagues on a bunch of stuff that they think that leads to that outcome, but you might not think that that's the best justification for the outcome, right? But you can make a compromise and say, "Well, my agreement with you isn't so vast that I have an outlier view, even though I think that my view is better on the legal principles, so I'm going to join you." I don't think that's a lie. I think it would be a lie if you signed on to a view that you actually didn't agree with you. If you go further, it's not like it's your second best view or you agree with it, but you don't think it's the best justification.
But if you actually disagree with it, but you join for whatever reason, maybe to keep friends or to bank capital in a subsequent case, or whatever. You might even do it maybe for the guidance reason. I think that's a harder question. If you're doing it to form a majority, if you're basically sucking it up and you're going to form a majority so that future courts won't be confused, I probably think that's not okay, but I can see strat arguments on the other side as well.
Will Baude: Thinking about this Apodaca unanimous juries question, okay?
Nina Varsava: Yeah.
Will Baude: We're faced with the four-one-four dilemma. I'm somebody who thinks, "Look, it should be the same right in federal and state courts, and it should be unanimous in both." I see we have a guidance problem, so I see how the four of us could produce a more stable result if we all said to Justice Powell, "Fine, we'll sign on to your crazy theory that the right applies in federal court. At least it applies in federal court, but not state court." But it seems like we'd be... We don't agree with that. We just think that's a very strange way to think about the case.
Nina Varsava: Yeah. That seems like a deep disagreement, because Powell had this view, the dual-track incorporation view, which the four, which all the eight, I think, deeply disagreed with. I think, in Apodaca, given the justices' beliefs on the law, if anything, I think Powell erred there, because I think he actually suggested that his dual-track incorporation view had not won the day, but he was still pushing it, even though he was saying that it's not the law. If anything, Powell should've compromised with one or the other of the factions.
Will Baude: How would he decide which one to compromise with?
Nina Varsava: We would have to ask why he takes this dual-track incorporation view. If you think that defendants have a right to unanimous verdicts in federal court, I think you need a pretty strong justification, which is not obvious to me where that would come from, about why a defendant shouldn't have that constitutional right in state court.
Will Baude: I assume it'd be something like, "I mostly believe in federalism, and I'm mostly worried that incorporation is going to be a big mistake and injects courts way too much into what states are doing. But I recognize we can't just let states do whatever they want, because then they do terrible things, especially to marginalized groups."
Nina Varsava: Yeah. Even if you think that, on a blank slate, given all of the decisions which had rejected... I think. This is not really my area, but I think. The other justices had said that this dual-track incorporation, especially in the Sixth Amendment, is not... But other precedents are going against that. Even if Justice Powell thought that, if you could start from the beginning, you should have different rights in federal and state court. I think, at that point, he had to let that go.
Will Baude: Yeah. Yeah. This is another one of these perpetual questions of precedent, is letting things go. I don't know the man. I assume he'd say something like, "Yes, there's this aggressive activist project to really dramatically incorporate the Bill of Rights, and I think it's going overboard. It's probably going too far. And it hasn't yet done everything, so I'd like to put the brakes on it as much as possible."
Nina Varsava: Mm-hmm (affirmative). Fair enough.
Will Baude: I don't know. But then maybe you say, "Well, it's too late for you to put the brakes on it, because once they've got a certain number of precedents, you've got to just join the parade."
Nina Varsava: Yeah. My sense is that, at that point, it probably was too late, but I could be convinced otherwise. It's partly a descriptive question of just how many legal materials could he possibly cobble together to support his view.
Will Baude: Yeah. I see why you said there's no one formulaic answer to this, right? Now, it seems like, if the justices are negotiating with this and can impart about the strength of their various beliefs and willingness to compromise and their exact reasons, and they'll probably overestimate the strengths of their own positions.
Nina Varsava: Yes. One way that I think my view of all this is going to be different or unconventional is that I give precedent-bound courts more credit or input a greater duty on them to make sense of previously decided decisions. And for that reason, I don't expect always judges to compromise their deeply held beliefs, because I think the precedent-bound court should look at the decision and look at what was decided and try to give, in Dworkin's words, a constructive interpretation of that decision and all other decisions and legal materials, especially in the same area, and as best that court can, follow what has happened before.
And I think that it's a mistake to think of the plurality precedent problem as categorically different from the precedent problem in general. Often, it's hard to apply a precedent to a new case, especially a case that comes 50 years later. Precedents, I think for good reason, don't come with holdings and dicta clearly demarcated, and we might not even listen to the court if it did that. If it says a bunch of stuff and says, "This is just dicta," but we see through that, then you might think, "No, that's actually a controlling view."
And I think that it's up to... It's part of the role, of the job of the precedent-bound court to do that kind of work, to figure out what was the holding, what was the holding in light of everything that has come afterwards, and what's the holding in light of this new context that we're in now? It gets particularly gnarly when it comes to plurality decisions, but often, it's very hard to do even when you have a majority opinion. No one says that everything written in a majority opinion is binding, and certainly not that it's binding in a textualist sense, where we could just read the words and figure out what it means.
Will Baude: Right. Or you have two conflicting opinions, and the opinions don't totally admit, are not totally candid about the scope of the conflict. Then, the later court has to root it out.
Nina Varsava: In separate cases, you mean?
Will Baude: Yeah.
Nina Varsava: Yeah. Yeah, exactly.
Will Baude: Can I ask you... This has always bugged me, and now, maybe I have the tools to criticize it. Tell me if I'm using this rightly. In the court of appeals, there's this common practice of two-track precedents where some decisions are called precedential, and other decisions also decided by three judges are labeled non-precedential. They used to be labeled unpublished, but now, the age of the internet, it's all public. It's all on the internet. It's just some are called non-precedential. This has always really bothered me, not because every decision is necessarily entitled the same weight or the same respect, but because it seems weird that the panel who writes the decision will be the ones who are in charge of deciding how much weight it's entitled to. The test is like, if the opinion doesn't decide any new questions of law and just applies preexisting principles, you can call it unpublished. But I don't know. You'd think somebody later might disagree if the opinion was doing something new. I'd take this same line to say, maybe we shouldn't let courts of appeals... We shouldn't listen to courts of appeals' views, whether their opinions should be precedential or non-precedential. The precedent-bound court should be the one to decide what's precedential.
Nina Varsava: Yeah. That's what I think. I think that this is an interesting question as well, and unpublished opinions have always troubled me, too. And I'm not the only one. Other people, for various reasons, have criticized unpublished decisions. I think something like 60 or 70% now of court of appeals' decisions are unpublished. We also have this issue at the state level, because state court of appeals' decisions can be unpublished, too.
I have a new paper, it's still a draft, where I get into this a bit. But I agree with you, and probably go even further. A court can't decide a case and then say, "This opinion is not precedential." Part of the reason for that, and from what I think Dworkin would say, is that that's a legal practice, insofar as that that decision was legally binding in the parties. You're participating in a legal practice, and it has to be taken into consideration in future cases. Why? For a few reasons. But one, part of the justification for a precedent is fairness. If we care about treating people the same, you can't just have a court decide a case and say, "You don't need to decide... Future litigants don't need to be treated the same as these litigants, because we say so." No, everyone gets equal treatment and gets the right to rely on previously decided cases.
In the past, courts of appeals have actually even gone so far as to say that litigants can't cite unpublished decisions. But then there was a rule, I think, in 2007 saying that at least decisions after that... I forget the exact timeline. But that courts of appeals now cannot prevent the citation of unpublished decisions.
Will Baude: Right. You have the right to cite them, but then the court of appeals can still say, "Cite it all you want, but we don't care about it."
Nina Varsava: Yeah.
Will Baude: Okay. Now then, just putting on my legal realist hat for a second, though. I take it, though, maybe what we label an opinion unpublished, what courts really mean is something like, "Look, we didn't spend a lot of time writing this one, and in fact, it was written by staff attorneys without much involvement from either the judges or their regular law clerks. So, don't take any of the particular sentences in it quite as seriously as you would for one we spent a lot of time on, just FYI." And that would be okay, right?
Nina Varsava: I think that's okay. Yeah, I think that's okay if it's that kind of signaling device. And if we take that view, we're not saying that an opinion labeled unpublished or non-precedential, we're not saying that it's categorically different, that it has categorically different legal status from a published decision. We're just saying, then, "Read this with care. This is not our best work."
Will Baude: Right. Yeah. I'm told that there was a time when the Supreme Court decided 200 cases a year, and this was actually an unwritten principle. A Supreme Court precedent was that footnotes in any opinion issued in June should basically be ignored, because it was very likely they had been added to the opinion without all the justices really reviewing them. You've got a bunch of decisions coming out, and you're at the last minute adding stuff to it. I've never heard this rule written down, but I've heard from some long-time Supreme Court practitioners that was a well-known secret rule. That does trouble me, I've got to say. Maybe just don't add the footnote at that point.
Nina Varsava: Yeah. That's interesting. Footnotes already have, I think, a lower statues from the stuff that occurs above the line.
Will Baude: Is that an official rule, or is that just a-
Nina Varsava: No. I don't think so. Yeah. I'd say it's a norm.
Will Baude: Yeah. That's funny. Not all footnotes, of course.
There's one last thing. This is a little bit of a change of topic, but you know it's something that I'm also very interested in. You've also written about, I guess, the issue of opinion writing and judicial rhetoric more broadly. This is something that comes up, actually, in these Ramos and Vannoy cases, especially we were talking about where the majority and the dissent are using a lot of... I don't know how to call it. Some of it's personal or heated rhetoric. Some of it's just flowery rhetoric. I think Ramos ends with this thing for Justice Gorsuch about how, "Can't perpetuate something we all know to be wrong only because we fear the consequences of being right." Designed to make you feel really warm and glowing about overruling precedent. You're critical of this kind of thing, right?
Nina Varsava: Yeah, yeah. I'm critical of it. Kagan criticized Gorsuch's rhetoric there for me. She calls it soaring rhetoric. I think that's a good example that you quoted. Yeah. I'm critical of flowery and soaring rhetoric. I'm more critical of the personal attacks and vitriolic rhetoric. I think it's especially bad when it's directed at parties, but here, we have just inter-justice attacks, and I think those are problematic as well. They're distracting, I think, in both of these cases, especially in Edwards v. Vannoy. I think it's almost embarrassing how much the justices seem to care about airing their interpersonal grievances.
Will Baude: Why is it distracting rather than... It seems like... Law students would read these cases. One of the things they're going to want to know is, "Should I feel bad about Justice Kagan's position because she's being inconsistent, or should I feel bad about the majority's position because they're ultimately being really hard on unprivileged, on weaker parties?" Why shouldn't the justices... If it's something we care about, why shouldn't the justices tell us what they think about it, be candid?
Nina Varsava: Yeah. I think being candid is related but separate question, but just take the first part of your question. One, students could care, and students could enjoy this kind of rhetoric, because it's entertaining. As scholars and students, we could want to know what the justices feel about one another, and we could also be interested in interpersonal inconsistencies in the justices. I don't think that an opinion, that the rule of a court, especially in an opinion, is to do that kind of work or showcase those kinds of realities for us.
For example, let's take Edwards v. Vannoy. Given that Kagan disagrees with the substantive legal position of those in the majority, she should absolutely write a dissent explaining why that is the case. I think when she says things like, "The majority argues in reply that the jury unanimity rule is so fundamental because... Well, no, scratch that." And it goes on. She has a lot of comments like this. Her opinion, by the way, has been widely praised in part because of it, rhetoric and how hard it is on the majority. She says, "As to every feature of the unanimity rule conceivably relevant to watershed status, Ramos has already given the answer, check, check, check, and the majority can say nothing to the contrary." To me, this comes across as offensive, I think, and just irrelevant to the legal issues.
She says things like... She calls the majority's approach, "Call the first throw everything against the wall. Call the second slice and dice." Normally, you would call things something because you're going to rely on that later for clarity, but she doesn't do that. She's just, I think, coming up with catchy ways to make the majority out as disingenuous and also just dull, I think, and lazy. I don't know if that's relevant in a judicial decision. I find it distracting. But I will say that I think that justices have a lot more leeway when they're writing separately, because there, they're not even ostensibly writing for the court as a whole. I think it's much more problematic to use this kind of rhetoric in a majority opinion when she's writing for the court, because that's really supposed to represent the court as a whole. And even if you have some disagreement like a dissent, I think that the majority has an obligation to respect all of its members.
And Kavanaugh here is also guilty of what I've called out Kagan for, because Kavanaugh says that "Kagan has no right to say this about the majority, because she was against defendants in Ramos, and now she's saying that she cares about defendants." That's also irrelevant and inappropriate, especially in a majority opinion.
Will Baude: At, though, in the dissents, Justice Kagan reminds me a lot of Justice Scalia in this way. He was also famous for these kinds of clever... I take it she's doing it because she thinks she's going to be persuasive. She thinks it's going to succeed to make the majority opinion look silly or sloppy or unpersuasive. You're the dissenter. Your only weapon is to convince other people who are reading it that you're right and that, one day, you should be vindicated. I don't know.
Nina Varsava: And the purpose of that, you think, is... For example, a court in five years reconsiders the law of retroactivity and decides, "Yeah, Kagan is right."
Will Baude: Yeah, I guess. Goes to your holistic precedent point. Maybe that means we overrule Edwards v. Vannoy in five years. Maybe it doesn't. It just means that, in a future case, thinking about all these precedential issues together, we give Vannoy a little less weight, because we recognize the things that are wrong with it. In a future case, we're deciding whether to recognize a watershed rule, and we're trying to decide if Vannoy really closed the door to recognizing a watershed rule, or just predicted we would never recognize a watershed rule. We're a little more likely to interpret it in a little narrower fashion, because we recognize how powerful the dissent was or something?
Nina Varsava: I guess it depends on why you think that the dissent is persuasive. I think that the dissent on the law is persuasive, the rhetoric side, but I think that, if it's persuasive for the reason of the heated rhetoric that it throws against the majority, I don't think that that's a good reason for it to be persuasive. Insofar as comments like, "The majority's argument does not fly, does not resonate," and someone thinks, "Now, that's really more persuasive than the substance," I don't think that's a good reason to be persuaded. There's lots of good reasons to be persuaded here by Kagan's argument. I think that a fair amount of what she includes in her dissent does not qualify as those kinds of good reasons. They are rhetorical flourishes which some might appreciate. I think those who are celebrating this kind of rhetoric like it because they agree with Kagan substantively. But again, I don't think that it's... To the extent that it's this rhetoric that I've emphasized doing the work, I don't think that that's a good thing.
Will Baude: Yes. Better to lose than to win for the wrong reasons. Better to just... You make your logical argument, you hope that persuades people. If it doesn't, that's that, rather than adding rhetorical flourishes to help get us there.
Nina Varsava: Well, that's what I think, but I don't think that's an obvious view. If you're a pure consequentialist in these things, then you might think that justices should write whatever's going to get the most best outcomes in the future. Yeah. I don't take that view, but I don't think it's crazy if someone would.
Will Baude: Yeah. Probably nobody takes it to its true logical extreme like, "The justices would be the most persuasive by starting a Twitter account and just creating a series of unhinged tweets to gather a bunch of people on their side." We might still say, "That's just not something justices should do." We hope it wouldn't work, but in this day and age, I have no idea.
Nina Varsava: Right. Yeah. That's a good point. We could probably draw a spectrum of all the kinds of things the judges could do rhetorically. Maybe I'm closer to one end of the spectrum than some others, but everyone would draw the line somewhere.
Will Baude: Yeah. Hopefully. Again, these days, I'm not too sure.
Well, this has been amazing, and I've kept you longer than I meant to, so we should wrap this conversation up. Yeah. It's been an incredibly rich conversation.
Nina Varsava: Yeah. Time flies when you're talking about precedent. I also didn't know we had been at this for an hour. Thanks so much.
Will Baude: Hopefully, our listeners didn't notice either.
Nina Varsava: Yeah.
Will Baude: Thank you, Nina, for joining us today. For updates on future episodes, follow us on Twitter @UChicagoConLaw. Make sure to subscribe, rate, and comment wherever you get your podcasts. And if you need more current Supreme Court talk, check out Divided Argument, an unscheduled, unpredictable podcast hosted by me and Dan Epps. Thank you.