Legal and political commentators have already spent thousands of hours on how best to understand Justice Alito’s majority opinion in Burwell v. Hobby Lobby, and whether Justice Ginsburg’s dissent was accurate in saying the decision was of “startling breadth.”
But to understand the scope of the majority opinion construing the federal Religious Freedom Restoration Act (RFRA), we may need to focus on the separate concurring opinion of Justice Kennedy, an opinion that seems to be getting little ink. Two important and complex questions need to be asked about this concurrence: (1) Why should we care what it says? and (2) What does it really say? In the space below, and in my next column in two weeks, respectively, I take up each of those questions.
When There Are Five Votes for a Majority Opinion, Do (or Should) Concurring Opinions Matter?
The first question—why we should pay any attention to the content of Justice Kennedy’s opinion—is fair to ask, and complicated to answer. After all, Justice Alito’s opinion was an Opinion of the Court, which means an opinion for a majority of the voting Justices and not just for a “plurality” of them. In most circumstances, when there is an Opinion of the Court, lower courts (where battles over the scope of RFRA are going to be most meaningfully fought, at least until the Supreme Court decides another RFRA case) must look for meaning and guidance in that Opinion, without necessarily consulting the one or more additional concurring opinions that may have been filed. But, crucially, in Hobby Lobby, Justice Kennedy’s was the fifth vote in a 5-4 case; without Justice Kennedy’s joinder, Justice Alito’s opinion would have lacked a majority. So to the extent that Justice Kennedy’s separate opinion represents a narrowing gloss on Justice Alito’s writing (and in Part Two of this series I will take up whether Justice Kennedy’s opinion is indeed narrower), there is a plausible argument to be made that lower courts (and perhaps also future Supreme Courts) should view Justice Kennedy’s opinion as the guiding or controlling one.
Certainly that would have been true had Justice Kennedy not joined (some or all of) Justice Alito’s opinion, but instead had concurred only in Justice Alito’s bottom-line judgment that Hobby Lobby should win, and written a separate opinion laying out his narrower reasoning. In that instance, everyone would agree there would be no Opinion of the Court (for the parts Justice Kennedy did not join), and Justice Alito’s opinion would be for a plurality only. And in situations like these, the Supreme Court has held, in a somewhat well-known 1977 case, Marks v. United States, that lower courts should look for and be guided by the “position taken by those Members [of the Court] who concurred in the judgments on the narrowest grounds” (emphasis added).
Which Matters More, a Justice’s Vote (to Join a Majority Opinion) or His (Concurring) Voice?
Is the situation really so different if a Justice joins an Opinion of the Court (to make a fifth vote) but then writes separately to make clear the (narrow) understanding of the majority opinion on which he based his decision to join? There are first-rate legal minds (including, perhaps, some of my Justia ConLaw professor colleagues) who may say “yes”—formalities matter, and the act of being the fifth vote to join a majority opinion is all-important. There are no constitutional provisions, statutes, or judicial regulations that speak to this question; it seems to be a matter left to and determined by judicial practice. I am not aware that the Supreme Court itself has ever offered detailed views on how a situation like this should be handled, but I find it hard to see a big difference—in the context of a case whose result is determined by a 5-4 vote—between “concurring in the Judgment” and writing a separate opinion, on the one hand, and joining a majority opinion while writing the very same kind of separate opinion, on the other.
Because the writing of a separate opinion laying out a narrower view than that which might have been laid out by the majority opinion is a more specific and more fully explained act than is the general decision to join the majority opinion, I think attaching weight to the narrowing, specific concurrence makes good sense, especially if the concurring Justice is still on the Court (such that his separate writing bears on any prediction of how the Court would rule if another case were brought to it today.) I say this in part because a decision to join with other Justices to make an Opinion of the Court may have been made in part to keep peace at the Court or to avoid the direct insult of a colleague, and does not mean that there might not be important substantive differences among all those who join the Opinion.
The case for crediting the narrow understandings reflected in concurring opinions in this setting is especially strong when the majority opinion may itself be fuzzy (or silent) on the legal question at issue. In these circumstances, a fifth Justice who sincerely believes the majority opinion embraces the narrow reasoning that is on his mind does would not want to refuse to join (and concur only in the judgment) because of the fuzziness. Collegiality and harmony are better served by permitting him to join but to make clear (in a way that will be respected by lower courts) the expectations on which his joinder is based. If his separate concurrence is not given controlling weight in these circumstances, he will be encouraged in future instances not to join the majority opinion (but instead to concur in the judgment only), and this might create needless division and intra-Court friction if in fact the majority opinion embraced the (narrow) holding he thought it did but about which he was not completely sure.
Even when the majority opinion (which has five votes) is clear on the legal proposition in question and a concurring Justice’s “understanding” of the majority opinion, on which his joinder is premised, is objectively unreasonable, there is still a forceful argument to place weight, in a 5-4 case, on a separate concurrence by a Justice within the majority. To the extent that a concurring Justice makes clear by his writing that he disagrees with this part of the Opinion of the Court, his narrower understanding of the law should control, regardless of whether he joined the majority opinion or simply concurred in its judgment.
In effect, we should read his actions/writing together to mean that he really didn’t join with the part of the Court opinion with which he (apparently) disagrees, but he just decided (perhaps because he misread the majority opinion) not to formally opt out of any important sentences or paragraphs in the majority opinion that dealt with the legal proposition in question. It also bears mention that majority opinions often (usually?) fail to break up analysis of each legal question into a separate Section or Part. For this reason, Justices who agree with the bulk of an opinion’s analysis, but who may disagree with a few key sentences, or even words, cannot easily register their nuanced mix of agreement/potential disagreement simply by declining to join whole subdivisions of the opinion.
A few hypothetical variants may help make my point. As I suggested earlier, everyone seems to agree that if a fifth Justice joins most of an opinion, but expressly declines to join a Part or Section of the opinion that included legal proposition X, we would say the Court has not embraced X. If, instead, the fifth Justice writes to say that he “join[s] all parts of Opinion of the Court, except to the extent that the Opinion says X,” again there would be no Opinion of the Court as to the legal proposition X. Now imagine the fifth Justice writes separately to say: “I join the Opinion of the Court because it does not say X.” Should that explicit statement be treated any differently? And, finally, how about: “I join the Opinion of the Court on the understanding that it does not say X”? To me, it would be formalistic without justification to treat the last two of these situations (regardless of the reasonableness of the concurring Justice’s reading of the majority opinion) differently from the first two.
I do think the fact that a Justice joins a majority opinion should not be completely irrelevant in these kinds of situations. So, for example, if there is ambiguity in the meaning of the concurring Justice’s separate writing, that ambiguity should be resolved in favor of harmonizing it with the majority opinion that she chose to join. But to the extent that the concurring opinion clearly disagrees with, or offers more details in narrowing, legal propositions asserted in the majority opinion, the concurring Justice’s voice should control over her vote (to join the majority).
Perhaps the best counterargument, that is, the best argument in favor of not attaching controlling weight to the concurring opinion, is that the Marks-style analysis is often difficult to undertake, and sometimes lower courts make mistakes in trying to figure out what the narrowest common grounds are between multiple opinions. Deciding what is “common” between opinions, and discerning the “narrowest grounds” can be challenging. In the Marks setting, we have no choice but to undertake this tricky analysis because without comparing multiple opinions (no one of which had five votes) we lack any holding at all to guide future cases. By contrast, in the situation I describe in this column, there is an Opinion of the Court (that got five votes), and so telling lower courts to follow it only, and not to complicate matters by trying to incorporate the concurrence into the analysis, does not deprive the system of a holding to guide lower courts.
In the end, I find this counterargument unconvincing for three reasons. First, the Marks-style analysis may sometimes be difficult, but courts do perform this task regularly, and in some cases it may actually be easier to focus on clear limiting language in a concurring opinion than to resolve ambiguities within the majority opinion alone. (I should note that some appellate courts—including the U.S. Supreme Court during its early history—do not issue “Opinions of the Court,” but rather issue individual opinions seriatim, leaving lower courts to figure out the rule(s) of law that were adopted.) Second, we employ Marks analysis not just because we want to generate a holding (we could to that by flipping a coin as between all the opinions that supported the judgment), but because it makes normative sense to seek to identify true common analytic ground between five or more Justices. If that is true in Marks, it is true here as well. Finally, as I noted earlier, if we don’t attach controlling weight to a concurring opinion in the situation I posit here, then a Justice who makes the fifth vote in a future case will, instead of joining the Opinion of the Court, simply concur in the judgment and write a separate opinion anyway, and so we will be right back in the realm of Marks. If a Justice cares enough about an issue to write separately, she probably will do what it takes to make sure the concurring viewpoint is given as much weight as possible in future cases.
Historical Examples
I am not aware of a huge number of prominent instances in which a Justice provided a fifth vote for an Opinion of the Court and then also wrote separately to distance himself in a discernible way from at least some broad propositions in the majority’s approach. But in well-known cases in this category that do come to mind, lower courts have tended to place controlling weight on the concurring views of a fifth Justice even though he also joined the majority. Maybe the most famous illustration of this is Youngstown Sheet and Tube v. Sawyer, where Justice Jackson’s concurring opinion has held tremendous sway in lower court (and also later Supreme Court) rulings, even though he also joined Justice Black’s Opinion of the Court in this 5-4 case. Another significant decision is the 5-4 ruling in United States v. Verdugo-Urquidez, where Justice Kennedy joined Chief Justice Rehnquist’s majority opinion (giving it a fifth vote), but also wrote separately to express views that were narrower than those expressed in the Chief’s writing. And a Third Circuit case, at least (with then-Judge Alito part of the unanimous panel), found that Justice Kennedy’s views controlled.
Perhaps the case most similar to Hobby Lobby in this respect is National League of Cities v. Usery. There, as in Hobby Lobby, powerful entities—States rather than corporations—sought exemptions from federal workplace regulations. And, similar to Hobby Lobby, a five-Justice majority opinion (authored in that case by Chief Justice Rehnquist) held that States were immune from the minimum wage regulations at issue there, laying out what on its face seemed like a rather broad principle of state immunity from federal regulation in areas of “integral” or “traditional” government functions. Justice Blackmun joined the majority opinion, but also wrote separately to make clear his narrow understanding of state immunity and what the majority opinion should stand for; in Justice Blackmun’s view, state exemptions depended on the application of a balancing test in which federal interests were weighed against state autonomy.
In the wake of National League of Cities, at least some influential lower courts found Justice Blackmun’s balancing test to be required by the Court, even though it was not mentioned explicitly in Chief Justice Rehnquist’s majority opinion. Indeed, even though there was an Opinion of the Court in National League (because Justice Blackmun did join the Chief’s writing, giving it five votes), the U.S. Court of Appeals for the District of Columbia characterized the Chief’s opinion as a “plurality” view, and focused instead on how best to read Justice Blackmun’s separate writing. And when the Supreme Court itself was called upon to apply National League of Cities five years later in Hodel v. Virginia Surface Mining, it observed that National League of Cities stood for some kind of balancing test, citing Blackmun’s concurring opinion.
There may be (and probably are) counterexamples, but these high-profile cases, especially National League of Cities, suggest that there is at least a significant likelihood that lower courts will (justifiably) feel controlled by Justice Kennedy’s Hobby Lobby writing and thus will parse it to see if his views narrow the scope of Justice Alito’s opinion. So I will turn to that parsing in Part Two of this series.
