May 30, 2017 Articles

The Second Lives of Powerful Dissents

In America, even a single court may be divided against itself—and, at its most memorable times, usually is.

By Robert A. O’Donnell and Lara Grillo – May 30, 2017

One of the most characteristic and eccentric features of Anglo-American law is its willingness to speak with many voices. In America, even a single court may be divided against itself—and, at a court's most memorable times, usually is. A judge may dissent not merely in chambers, not merely before his or her peers, but openly in a published screed that necessarily accompanies the court’s pronouncement of law.

This article will discuss several aspects of dissenting opinions as well as consider how prior dissenting opinions will come into play in the wake of Justice Gorsuch’s elevation to the Supreme Court.

The Second Lives of Scalia Dissents
Powerful dissents can find life in subsequent jurisprudence long after they have been written and, indeed, long after the tenure of those who have written them.

Justice Scalia wrote one of his last and most discussed dissents on the Court’s finding of a constitutional right to gay marriage. See Obergefell v. Hodges, 135 S. Ct. 2584, 2629 (2015) (Scalia, J., dissenting). He lost that fight, as he did in the earlier and related Lawrence v. Texas, which ruled that a Texas statute criminalizing sexual conduct between people of the same sex was unconstitutional. 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003).

The reasoning in dissents, though, can still make its way into subsequent appellate opinions, and Scalia’s Lawrence dissent is one of several that have made their way into subsequent case law. In People v McEvoy, 215 Cal. App. 4th 431, 444, 154 Cal. Rptr. 3d 914, 923 (2013), the California appellate court cited Scalia’s dissent in Lawrence to help distinguish McEvoy, arguing that the Supreme Court’s decision in Lawrence struck down a particular Texas statute, not because the Court discovered a fundamental right, but because it did not further any legitimate state interest. See id. After quoting Scalia’s dissent, the California court applied his reasoning to conclude that Lawrence would not undermine the court’s holding that there was indeed a rational basis underlying a Texas statute criminalizing consensual incest. Id.

A dissent is most persuasive when courts are unsure about the state of the law. This was evident in Chavez v. Arte Publico Press, 157 F.3d 282, 286 (5th Cir. 1998), reh’g en banc granted, judgment vacated, 178 F.3d 281 (5th Cir. 1998), reh’g en banc, 180 F.3d 674 (5th Cir. 1999), which considered whether the property guarantee of the Fourteenth Amendment would overcome the University of Houston’s Eleventh Amendment immunity. The Chavez court found itself in an unsettled position. The question before the court was whether the property guarantee of the Fourteenth Amendment would allow an author to bring a private copyright suit against an unwilling state in federal court.

The court had originally held that the University of Houston implicitly waived Eleventh Amendment immunity when it chose to enter into a contract with the plaintiff, but the Supreme Court came down with an opinion concerning the Seminole Tribe of Florida that changed the legal landscape. Chavez v. Arte Publico Press, 59 F.3d 539, 540 (5th Cir. 1995), cert. granted, judgment vacated sub nom. Univ. of Houston, Texas v. Chavez, 517 U.S. 1184 (1996). The Supreme Court then remanded Chavez to the Fifth Circuit to reconsider its opinion in light of Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996). The earlier Fifth Circuit decision had relied on the Copyright and Lanham Acts to rule that under those statutes, a state’s price of doing business in the areas covered by these acts was the state’s acceptance of the chance of facing federal lawsuits. The Supreme Court’s ruling in Seminole complicated the analysis because in Seminole the Supreme Court held that the Eleventh Amendment prevented Congress from authorizing a suit by an Indian tribe against an unwilling state.

The Fifth Circuit returned to the case and then invoked Justice Scalia’s dissent in Pennsylvania v. Union Gas Co., 491 U.S. 1, 43, 109 S. Ct. 2273, 2303, 105 L. Ed. 2d 1 (1989), overruled by Seminole, 517 U.S. 44, where he argued that Congress did not have the authority to make a state liable to private parties for the costs of cleaning hazardous waste, even if the cleaning is of sites that the state owns. Scalia in Union Gas considered whether a state’s action in a certain sphere (in this case, the owning and operating of specific property) would constitute a waiver of Eleventh Amendment immunity. Id. at 33–35 (Scalia, J., concurring in part and dissenting in part). In dissent, he resisted the idea: “[T]o acknowledge that the federal government can make the waiver of state action in a field that Congress has the authority to regulate is substantially the same as acknowledging that the federal government can eliminate state sovereign immunity in the exercise of its Article I powers.” Union Gas, 491 U.S. at 44. The majority in Seminole had not cited Justice Scalia’s Union Gas dissent, but when the Fifth Circuit reconsidered Chavez after Seminole, it used that dissent to justify its position.

Ambivalent Power of Dissent
While we can point to many instances of dissents enjoying unusual persuasive power in later cases, we should also consider where dissents have had an unpredictable effect.

At times, lower courts have been able to reject Scalia’s reasoning by virtue of his own dissent. For example, in Gulf Restoration Network v. McCarthy, 783 F.3d 227, 239 (5th Cir. 2015), the Fifth Circuit used Scalia’s dissent to build up a theory of law and then argue that the theory was ultimately bad law because it had not convinced the rest of the Supreme Court when it was first articulated there.

In McCarthy, the Fifth Circuit grappled with the circumstances under which an administrator of a federal agency may decline to make a determination after receiving a petition asking it for a judgment. The court analyzed Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (2007), at length to justify its decision. In Massachusetts, Scalia argued in dissent that while an administrator is bound to a small set of reasons he may rely on when he passes a rule, he has much broader scope to choose not to act or not to decide if his demurral is on matters about which the governing statute is silent. Id. at 535. That is, Justice Scalia did not believe that the Environmental Protection Agency, under the Clean Air Act, was required to make a judgment whenever a petition for rulemaking was filed. The Fifth Circuit found that in order to decide what is good law in the case before it, it must analyze Scalia’s dissent in Massachusetts, determine the nuances of the dissent’s arguments, and then rule against it because, after all, Scalia lost: “Justice Scalia, then, would have allowed the agency to put forward reasonable explanations for not making threshold determinations that are not inconsistent with the statute, rather than insisting upon an explicit textual connection. That the majority rejected this reading suggests a tighter linkage is required.” McCarthy, 783 F.3d at 239.

Administrative Law, Puppies, and Pizza
In losing Justice Scalia, the judiciary lost one of its most passionate critics of the constitutionality of the current federal administrative state.

In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 838, 104 S. Ct. 2778, 2779, 81 L. Ed. 2d 694 (1984), the Supreme Court attempted to clarify the muddled law surrounding when federal courts should defer to a rulemaking administrative agency’s reading of a federal statute. A 6-0 Court (three justices did not participate) decided that an agency must “give effect to the unambiguously expressed intent of Congress, but in the case where the lawmaker’s intent is not clear, the Court does not decide on the interpretation of the statute, but only whether the agency’s interpretation is ‘permissible.’” Id. at 843. Some members of the Supreme Court—Justice Breyer, for example—would look at several factors to determine whether Congress intended for the Court to grant deference to an agency making a particular rule: the Court would review a law’s legislative history, would attempt to divine the law’s purpose, and would adjudicate with an eye toward the consequences of a particular regulatory decision. Justice Scalia maintained both in law review articles and in various opinions and dissents that Chevron only made sense when applied consistently: the Court under Chevron had to defer to an agency’s reading of a statute when (1) there is textual ambiguity in the statute and (2) the agency chose a reasonable interpretation of the ambiguous language of the statute.

We may see how persuasive Justice Scalia’s frequent dissents on matters of administrative law will prove in the coming years, including perhaps as the Supreme Court addresses challenges to the FCC’s regulations or failure to regulate Internet service providers. The Court has not yet developed a large, consistent body of law on net neutrality, partly because fundamental issues of administrative law remain controversial.

The FCC has been ambivalent about whether to treat Internet service providers as if they are more like telephone companies or more like libraries—that is, whether Internet service providers are vehicles of transmitting communication (as telephone companies are through their poles, boxes, and wires) or actual communication or speech themselves. That issue came before the Supreme Court in National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 986, 125 S. Ct. 2688, 162 L. Ed. 2d 820 (2005), where small Internet providers challenged the FCC’s decision to classify Internet providers as “information services,” leaving them more or less unregulated. Small companies like Brand X would by consequence have a difficult time competing because the established Internet companies owned the physical infrastructure that linked businesses and homes to the Internet.

Justice Thomas delivered the majority opinion in Brand X and, in it, confronted Scalia with his own words from his dissent in United States v. Mead. See Brand X, 545 U.S. at 983 (citing United States v. Mead, 533 U.S. 218, 247, 121 S. Ct. 2164 (Scalia J., dissenting)). Scalia was unimpressed: Scalia had acknowledged in Mead that, under Chevron, the Court would be right to defer to an agency ruling if that agency were acting rationally upon an ambiguous statute. He saw no such ambiguity in the Communications Act—the law at bar for Brand X.

The Brand X majority held that the Communications Act’s definition of telecommunications services did not fully anticipate the “bundled” nature of Internet services, in which a “telecommunications input” is the vehicle for the offer of “information services.” Thus, a telecommunications input “is not separable from the service’s data-processing capabilities but is part and parcel of that service and integral to its other capabilities, and therefore is not a telecommunications offering.” Brand X, 545 U.S. at 971.

Justice Scalia was more penetrating in his riposte: “The pet store may have a policy of selling puppies only with leashes, but any customer will say that it does offer puppies—because a leashed puppy is still a puppy, even though it is not offered on a ‘stand-alone’ basis.” Brand X, 545 U.S. at 1007. Scalia offered another analogy:

If, for example, I call up a pizzeria and ask whether they offer delivery, both common sense and common “usage,” . . . would prevent them from answering: “No, we do not offer delivery—but if you order a pizza from us, we’ll bake it for you and then bring it to your house.” The logical response to this would be something on the order of, “so, you do offer delivery.” But our pizza-man may continue to deny the obvious and explain, paraphrasing the FCC and the Court: “No, even though we bring the pizza to your house, we are not actually ‘offering’ you delivery, because the delivery that we provide to our end users is ‘part and parcel’ of our pizzeria-pizza-at-home service and is ‘integral to its other capabilities.’” Any reasonable customer would conclude at that point that his interlocutor was either crazy or following some too-clever-by-half legal advice.

Id.

Dissents and the Changing Court
Some of these issues may come before the Supreme Court with Justice Gorsuch in the ninth chair. And as Justice Gorsuch takes Justice Scalia’s place, the Supreme Court may find itself welcoming a justice who is even more skeptical than was Scalia of the power of executive agencies and of the deference the judiciary has shown them over the past few decades.

Gorsuch has been explicitly chary of granting administrative agencies too broad a scope; to be sure, he has shown open hostility to Chevron itself, as he did in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). In concurrence, Judge Gorsuch challenged the practice of judicial deference to administrative agencies, noting that “maybe the time has come to face the behemoth” and consider a “world without Chevron.” Id. at 1149, 1158. Gorsuch seems to believe that the flexibility that lies at the heart of Chevron may not be a good thing: “Chevron’s very point is to permit agencies to upset the settled expectations of the people by changing policy direction depending on the agency’s mood at the moment. So if reliance interests count, they would seem to count against retaining Chevron.” Lynch, 834 F.3d at 1158.

Yet Justice Gorsuch may need more on his side than his philosophy if he intends to take aim at Chevron. He will need, among other things, words strong enough to change decades of law. He may well find those words in the dissenting voice of Justice Scalia, who will be remembered in part for precisely those times when he failed to convince his colleagues.


Robert A. O’Donnell received his J.D. at Harvard Law School in 2010 and his A.B. at Harvard College in 2005. Lara Grillo is a business litigator and appellate practitioner in Miami, Florida.


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