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When Does C.J. Roberts Write Strongly-Worded Dissents?:
In the Sunday New York Times, Linda Greenhouse had a very interesting article on Chief Justice Roberts' dissent in Massachusetts v. EPA. An excerpt:
  This case was a rude reminder that [Chief Justice Roberts'] careful self-presentation comes with a price. He is no more likely than any other justice to yield on what he regards as a matter of principle. But the raised expectation of consensus magnifies a defeat like this one: his consensus project lost as well.
  That Chief Justice Roberts cast a dissenting vote in Massachusetts v. Environmental Protection Agency was no great surprise. He had advocated a narrow view of standing, particularly in environmental cases, since his days as a lawyer in the Reagan administration. . .
  It was his vehemence rather than his dissenting vote that was the surprise. This was no dry document written by a law clerk. The chief justice was spending capital and speaking in his own voice.
  Roberts' dissent in Massachusetts v. EPA reminds me a lot of his dissent in Georgia v. Randolph, the Fourth Amendment case from last year. First, the style and reasoning are somewhat similar. Both are intense and sharply worded; neither pulls any punches. In both cases, the majority was creating new and uncertain ground to reach a satisfying result in a case with sympathetic facts. In both cases, Roberts had then-existing precedent on his side. In both cases, he urged the Court to stick to the preexisting approach rather than to break new ground.

  And just as importantly, both dissents were strategically placed. In both cases, the Court was almost evenly divided, and attracting just one more vote to his side would have likely changed the outcome. Masachusetts v. EPA was 5-4, and getting Kennedy's vote would have led the Court to affirm instead of reverse. Georgia v. Randolph ended up being 5-3, with Alito not yet participating, but a 4-4 vote would have led to reargument with Alito and a likely outcome the other way. In both cases, Roberts assigned the primary dissent to himself and wrote a piercing opinion, perhaps to see if he could pick off the swing vote in the case.

  It's too early to tell if these two cases will reflect a broader trend, both because these parallels may be a coincidence and because Roberts may change tactics in the future. But I did find the similarities between these two dissents pretty interesting. (And I'm very interested to know if others saw the same parallels; some of these judgments are of course a matter of opinion.)
stevesturm:
Do justices change their votes because someone on the losing side writes a particularly harsh dissent? It seems implausible to me that a justice casting a vote after thinking long and hard about the case and its ramifications will change his mind because the other side was a tad mean. I would think and hope the justices - on both sides of the ideological divide - would have a little more backbone than that.
4.10.2007 5:46pm
L.T. (mail):
"In both cases, Roberts assigned the primary dissent to himself and wrote a piercing opinion, perhaps to see if he could pick off the swing vote in the case."

I think you're on to something, Prof. Kerr. The "swing vote" in Randolph may well have been Justice Breyer, whose rather tepid concurrence opens with a nod to the Chief's dissent and perhaps (though this is uninformed speculation) was prompted by it. The Randolph dissent makes a series of pragmatic points, particularly its reference to domestic-violence cases, that were bound to resonate with Justice Breyer.

And although I haven't looked at it as closely, the same could likely be said with regard to Massachusetts v. EPA and Justice Kennedy's vote. But as others have already pointed out, Justice Stevens may have one-upped the Chief by citing so heavily Kennedy's Lujan concurrence and the Tennessee Copper case that Kennedy had mentioned at oral argument.

All in all, an interesting comparison, and fertile ground for commentary.
4.10.2007 5:48pm
blackdoggerel (mail):
Well, actually, Chief Justice Roberts hasn't written that many dissents. Based on my quick research, besides Mass. v. EPA and Georgia v. Randolph, he's only written a full dissent in House v. Bell and a partial dissent in LULAC v. Perry. House was a pretty inconsequential case that didn't really stand for any broader principles; the majority and the dissent mostly argued over the evidence. And LULAC was a partial concurrence and partial dissent. So really, the Chief Justice's only two full dissenting opinions in "cases that matter" have been the ones you've cited.

This could mean one of two things (or both): (1) when he's in dissent, Chief Justice Roberts generally assigns himself the opinion only if it's something he really cares about (and that will evince strong rhetoric); and/or (2) maybe all of his dissents are pretty strongly worded, and he just doesn't write that many of them, so when he does, they appear very forceful.

It's also worth noting that the Chief Justice's majority opinions usually include their fair share of zingers and rhetorical flair. So it may not really be that remarkable that his dissents do, too, only with more of a tone of protestation behind them.
4.10.2007 5:53pm
blackdoggerel (mail):
Clarification in my previous post: by "(and that will evince strong rhetoric)," I meant "(which will naturally lend themselves to strong rhetoric)."
4.10.2007 5:55pm
tarheel:
Hard to say whether harsh dissents ever "repel" justices in an individual case. Little doubt, though, that over time they tend to push certain justices away, especially when the dissents become personal. It has been widely reported/speculated that Scalia cost the right some key victories in recent years by failing to modulate his dissents aimed at O'Connor and Kennedy. They got tired of being ridiculed, the theory goes, and so they stopped listening to him.
4.10.2007 5:59pm
loki13 (mail):
Prof. Kerr,

I think that stevestrum and tarheel are correct. Strongly worded dissents may gain you fans in academia, but it tends to repel the swing voter. See Scalia, J (dissenting).

It's easier to bake a cake with sugar than vinegar.
4.10.2007 6:02pm
Just an Observer:
An interesting part of the emerging picture of the chief justice will be how much precedential deference in the future he will give the majority in this case, having lost it in spite of his own strongly articulated principles.

It may be a while before another case presents a similar question of standing. But sooner or later it probably will happen.
4.10.2007 6:16pm
John (mail):
I was calmly reading this post when I came across:

"the majority was creating new and uncertain ground to reach a satisfying result in a case with sympathetic facts"

Satisfying and sympathetic to whom? This gratuitous aside was not necessary for Kerr's point, should not have been made, and needlessly lets a reader question the writer's objectivity.

[OK Comments: John, I respond to your comment immediately below.]
4.10.2007 6:29pm
OrinKerr:
Thanks for the interesting comments. A few responses:

1) BlackDoggerel -- I agree that both are possibilities.

2) stevestrum, tarheel, loki13 -- sure, that's always a concern. But recognize the hindsight bias here: we only see the opinions *after* a case has been decided and all the votes are settled. As an outside observer, you don't know what the early drafts of opinions might have said: You don't know when a dissent "worked" and picked off the fifth vote, making the dissent a majority opinion. So it's a bit difficult for us to say when a dissent has the effect of alienating versus persuading.

3) John -- I meant "satisying and sympathetic" to the swing vote. Sorry if that was unclear. I'm not sure why that leads you to question my objectivity: Could you explain why, rather than just stating it as a conclusion? Also, you'll notice that I specifically stated at the end of my post that "I'm very interested to know if others saw the same parallels; some of these judgments are of course a matter of opinion." I added that to make clear that I was trying to draw parallels that were a matter of opinion; my thought was that stating an opinion and asking who disagrees was the best approach. Sorry if you found that approach "gratuitous" and "unnecessary."
4.10.2007 6:42pm
NYU 2L:
I haven't looked at Randolph, but on Mass. v. EPA, could he be trying to influence another vote in the same term? There's still a big pending standing case in Hein v. Freedom From Religion Foundation, and a lesser standing issue pending in Parents Involved in Community Schools v. Seattle Sch. Dist. 1. That may very well have provided a reason to point out the flaws in the majority's standing argument.
4.10.2007 6:58pm
Justin (mail):
I've learned that some dissents are strongly worded not because of a desire to persuade but a failure to persuade. Often, when they think that they can get a majority, but then ultimately fail (or worse, when they have a majority, and a necessary judge or justice changes side), they take the ultimate decision as either a betrayal or a failure of judgment, leading to a far harsher dissent than when their minority position was obvious to them all along.
4.10.2007 7:17pm
AF:
In both cases, the majority was creating new and uncertain ground to reach a satisfying result in a case with sympathetic facts.

In both cases, he urged the Court to stick to the preexisting approach rather than to break new ground.

Funny, I raised my eyebrows at the same passage as John did, but for a different reason: I question whether the majority was breaking "new ground" any more than the dissent would have done (I'm referring here primarily to Mass v. EPA).

What this shows to me is (1) Orin is straight down the middle, as always, but (2) nevertheless making judgments as to the merits of the cases in which Roberts dissented may not be the most fruitful approach to analyzing his jurisprudence in a forum such as this, since it triggers debate about the merits rather than about the specific characteristics of Roberts's dissents.
4.10.2007 7:30pm
SimonD (www):
SteveSturm:
Do justices change their votes because someone on the losing side writes a particularly harsh dissent?
Yes; Jan Crawford Greenburg has indicated that her research in the Blackmun papers found several cases where Justice Thomas' dissent peeled off Scalia and Rehnquist from the majority.

I have no idea how anyone who isn't entirely results-oriented can take seriously the idea that "[i]t may be heresy ... to suggest that the court’s directive to the Environmental Protection Agency was not necessarily the most important part of the decision," and that the standing question is the more important decision here. That this is true seems obvious to me - the result on the merits could easily have been achieved by Congress in a one-sentence amendment the Cleanm Air Act, but this case essentially dynamites the courtroom doors by adopting an injury in fact that makes Laidlaw look concrete and particularized, and threshold for the minimum relief necessary to establish redressability that I think is certainly the low water mark of post-Lujan standing jurisprudence, and may even in the strictest sense be unprecedented.
4.10.2007 7:43pm
blackdoggerel (mail):
AF,

The reaction among almost all legit legal commentators assessing the majority opinion in Mass v. EPA has been that, yes, it indeed broke "new ground" with respect to standing, and in a major way. Even the Greenhouse article referenced in the post, written for a general audience, alludes to this ("Invoking no modern precedent — because there was none — to support this new theory of states’ rights, Justice Stevens..."). And that's what Chief Justice Roberts was railing against -- the majority's fairly carefree break with established precedent (Lujan), and its reliance on completely inapposite precedent (Tennessee copper) to do so.

You can argue whether the majority's approach was legit or not, but there's really not much of an argument that it, not the dissent, constituted the "new ground" being broken in this case.
4.10.2007 8:01pm
AF:
You can argue whether the majority's approach was legit or not, but there's really not much of an argument that it, not the dissent, constituted the "new ground" being broken in this case.

Yes and no. The state standing discussion was novel in recent Supreme Court standing jurisprudence. But independently of that discussion (as Roberts pointed out in his dissent) the majority went through the established standing factors -- injury, causation, and redressability -- and concluded that the plaintiffs had standing. It is not the case that "almost all legit legal commentators" thought the dissent is more consistent with precedent on that question.
4.10.2007 8:08pm
blackdoggerel (mail):
SimonD,

It's a whole lot easier to pick someone off the majority if the switch won't affect the outcome of the case. Going from 8-1 to 6-3 is a much easier sell than going from 5-4 one way to 5-4 the other way, because it affects the result of the case -- which, to a Justice who might favor the particular result in a case (shocking, I know) -- makes it much harder for him/her to switch.

Also, a switch from 5-4 one way to 5-4 the other way requires extensive revision of the majority and dissent opinions to reflect the change in outcome (adding facts and procedural history to the former dissent, etc.). When a Justice leaves an 8-1 case to make it 7-2, this doesn't occur. This is a more marginal consideration, but it's another reason why a change in the outcome is a much harder path to go down than picking a person or two off a lopsided decision.
4.10.2007 8:09pm
e:
Does anyone else see a difference between clear/direct (Roberts) and poisonous (Scalia)? I certainly don't see Roberts's Mass v. EPA dissent as rude.
4.10.2007 8:32pm
OrinKerr:
e,

Yes, excellent point. Roberts' writing is vigorous, tightly-reasoned, and sharp (can you tell I like it? ;-) ), but I don't think he has ever said anything rude or dismissive.

AF,

With the benefit of your comment, it would have been smarter for me to say that Roberts *perceived* it that way, rather than it was that way. That's the key point I was trying to make; in both cases, he seems to have seen his job as trying to stop the majority from departing from precedent to create a new standard that will encompass a particularly sympathetic result. Perhaps I am too focused on the Randolph dissent, as I was following that case very closely and thought this was what happened in that case.
4.10.2007 9:32pm
Anderson (mail) (www):
ReVonna needs to find a new obsession. Bowling, perhaps. You get to knock down pins over and over.
4.10.2007 10:20pm
John (mail):
Orin,

Sorry I misinterpreted your remarks; I thought you were saying you thought the result was "satisfying," etc., a personal view that would not have had anything to do with the point you were making. As you clarified it, my comments are simply wrong.
4.10.2007 10:25pm
ReaderY:
Although this case means that Roberts has (thus far) lost on an issue of importance to him and the judiciary -- the construction of Article III standing -- I don't see it as being anything far-reaching. Given Kennedy's role as a swing vote and his position to Robert's left, it's simply inevitable that Roberts will lose on a number of issues of importance, the only question is how many and which ones. I don't think anybody expected Roberts to be able to persuade Kennedy to fundamentally change his philosophy; the only question is whether Kennedy will remain where he is, move a bit to the right, or move somewhat to the left. I don't see this case as telling us anything at all about what the future may hold on such matters.
4.11.2007 12:11am
SimonD (www):
ReaderY - Justice Kennedy has a philosophy? What is it?
4.11.2007 9:56am
Tim Dowling (mail):
Orin:

I realize your post is primarily about the dissent’s tone and the underlying strategic considerations, but I would like to challenge the assertion that the Chief Justice “had then-existing precedent on his side.” Regardless of who has the better argument on Tennessee Copper, the dissent’s view of that case sends you back to the traditional three-factor standing analysis. On particularized harm, the majority cites the holding in Akins that a widely shared injury can support standing. The dissent simply ignores Akins. On causation and redressibility, the court cites a majority opinion by Justice Scalia (as well as a concurrence by Justice Kennedy) holding that these requirements should be relaxed where the plaintiffs seek to vindicate a procedural right. The dissent once again ignores this precedent.

For more, see here and here.

Best,
Tim Dowling
4.11.2007 11:28am
SimonD (www):
Tim,
I have a short essay that I'm expecting to post later this week dealing with the standing aspect of the case, and setting this decision into the context of post-Lujan standing cases, including Akins. One of the points I make therein is that while Akins is certainly comparable, it's easily distinguishable. I'm preempting myself a little here, but the point I'd make is that while both cases are litigation challenging an agency's failure to act, a favorable decision in Akins clearly met the redressability prong of Lujan, insofar as success on the merits would lead virtually as a matter of course to the complete remedy of the injury in fact accepted by the court. By contrast, in the instant case, success on the merits might, speculatively, lead to an action which might, on some very attenuated level, possibly contribute to remedying an injury in fact which was itself already highly speculative and temporally remote (cf. McConnell, 540 U.S. at 226 (opinion of Rehnquist, C.J., joined by, inter alios, Kennedy and Souter, JJ.) (a far more likely injury removed from the litigation by only six years was "too remove temporally to satisfy Article III standing").

I'd also be interested to know what you mean by "the dissent’s view of that case sends you back to the traditional three-factor standing analysis" - "traditional three-factor standing analysis," would that be like, uh, Lujan? Wouldn't asserting that the court should be following the traditional three-factor standing analysis amount to having "then-existing precedent on his side"?
4.11.2007 11:48am
Just Dropping By (mail):
"Justice Kennedy has a philosophy? What is it?"

If nothing else, Kennedy is consistently one of the strongest defenders of free speech on the Court these days.
4.11.2007 12:02pm
Tim Dowling (mail):
Simon – The majority cites Akins to support its analysis of injury in fact, not redressibility. So whatever your views are on whether Akins is distinguishable regarding redressibility, those views are not germaine to the court’s reliance on Akins with respect to injury, or the dissent’s decision to ignore the case as it pertains to injury. As to your second point, after the discussion Tennessee Copper, the majority analyized the case under the three-factor test, which includes the special rules that apply to procedural rights (per Justice Scalia). Again, the dissent simply ignores the applicable precedent on procedural rights. The reader is left to wonder why.
4.11.2007 12:04pm
Jeremy T:
The characterization of Roberts' dissent as "rude" is absurd. Linda Greenhouse is a liberal hack.
4.11.2007 1:09pm
SimonD (www):
Tim - granted, but nevertheless, it takes some nerve to cite Akins for one prong of Lujan notwithstanding that it cuts against you on another other. I would have dealt with this case along similar lines as Steel Co., personally - even accepting the tenuous injury in fact and causation, the redressability standard adopted here is so tenuous that it essentially snaps that prong from Lujan's triad. For the life of me, I can't understand why this is even an issue when the whole thing could be dealt with with a one-sentence amendment to CAA. I was under the impression that the Democrats controlled Congress now, and since they don't appear to be busy doing anything else worthwhile, perhaps they should take a look at it.
4.11.2007 2:54pm
SimonD (www):
Jeremy - as much as I'd like to resist defending Greenhouse after her contemptible assault on Greenburg, fairness demands that I note her article doesn't call the dissent "rude" - she says that the case "was a rude reminder that [Roberts'] careful self-presentation comes with a price. He is no more likely than any other justice to yield on what he regards as a matter of principle. But the raised expectation of consensus magnifies a defeat like this one: his consensus project lost as well."
4.11.2007 2:58pm
Tim Dowling (mail):
Simon -- Thanks for the interesting exchange. One textual point overlooked in the opinions is that the Act already refers to carbon dioxide as an air pollutant (see section 103(g)(1)). True, it's a non-regulatory provision, but it's hard to argue that carbon dioxide is an air pollutant under the Act for research but not for tailpipe limits. Perhaps the one-sentence amendment should say: "Carbon dioixide is an air pollutant, and this time we mean it." :)
4.11.2007 3:36pm
SimonD (www):
Tim - re 103(g),

I've really tried to avoid getting into talking about the merits, because I think the threshold question is by far the more important aspect of the case, and thinking discretion to be the better part of valor, I'm going to try to stick with that. ;)

With that having been said, that's at least reasonable point about §103(g) - concededly it's talking about stationary sources of pollution, but it clearly contemplates CO2 as an air pollutant, at least in the context of a stationary source, which would seem to slot neatly into even Justice Scalia's reading of §302(g), and I'm not sure what the basis for differentiating would be. And I would observe that even Justice Scalia would surely agree that "[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme - [e.g.] because the same terminology is used elsewhere in a context that makes its meaning clear." United Savings Assn. v. Timbers of Inwood Forest Assoc., 484 U.S. at 371 (opinion for the court by Scalia, J.). Still: I thought that the import of Chevron was that for purposes of the question on the merits, what counts isn't what you, me, the Sierra Club, Justice Stevens or anyone else thinks the most likely reading of the statute may be - the question is whether EPA's reading was totally unreasonable. It very much seems to me that this case, "fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress," 467 U.S. at 866, and Chevron prescribes what should be done with such challenges.
4.11.2007 5:51pm
Francis (mail):
on the standing question,

does the very nature of CO2 as an alleged pollutant with impacts measurable only on a global scale necessarily mean that the case is non-justiciable?

why? Standing is a prudential doctrine mostly designed to ensure that the cases or controversies brought to court are legitimate, and well-argued. Standing doctrine has never fit particularly well with federal environmental law.

why is it that when pollutants have local impact there is standing but when the pollutant is global there is none? why should the legislative intent to allow the public to challenge EPA's inaction be ignored?
4.12.2007 1:35pm
SimonD (www):
Standing is a prudential doctrine mostly designed to ensure that the cases or controversies brought to court are legitimate, and well-argued.


To the contrary, Francis, standing involves "both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U. S. 490, 498 (1975) (emphases added). "Though some of [standing's] elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), and "the standing requirements of Article III's case-or-controversy limitation on federal judicial power[] [are] a fundamental feature of the Constitution's separation of powers." Winkler v. Gates, __ F.3d __ (7th Cir. 2007) (slip op. at 19-20) (Sykes, J., concurring).
4.12.2007 3:13pm