Posner's Morse Error in the Anti-Gay Shirt Case
A quick addendum to my last post on Judge Posner’s bizarre, sad — and wrong — opinion today in the “Be Happy, Not Gay” t-shirt case, Nuxoll v. Indian Prairie School District #204:
The plaintiff calls Justice Alito’s concurrence the “controlling” opinion in Morse* because Justices Alito and Kennedy were part of a five-Justice majority, so that their votes were crucial to the decision. But they joined the majority opinion, not just the decision, and by doing so they made it a majority opinion and not merely, as the plaintiff believes (as does the Fifth Circuit), a plurality opinion.
Lawyers’ quibbles. As I explained in the first Stitch in Haste Podcast, it doesn’t really matter whether one calls Chief Justice Roberts’ ruling in Morse v. Frederick (a/k/a the “Bong Hits 4 Jesus” case) a “majority opinion” or a “plurality opinion.” What matters is that Justice Alito made it unambiguously clear in his concurrence that Morse was not to be extended to any fact pattern other than purely apolitical speech advocating illegal drug use. Any extension of Morse to such fact patterns — including “Be Happy, Not Gay” t-shirts — is plain error.
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*Morse v. Frederick, 127 S. Ct. 2618 (2007)
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You keep saying this, but it's just not true. Do you have any authority for the claim that "it doesn't really matter" whether Roberts's opinion is a plurality or a majority? The academic literature and lower court opinions seem to be solidly against your position.
There's a world of difference between concurring and concurring in the judgment. Alito and Kennedy could have concurred in the judgment, which would have left Roberts with only a plurality (or concurred in part and dissented in part creating a "partial plurality"). If they had done that, then Supreme Court precedent would have called for lower courts to apply the Marks test, which would have selected the Alito concurrence as the narrowest opinion, and thus the binding precedent.
Instead, they chose to fully join the majority while issuing a separate concurrence purporting to explain or clarify what the majority really means. This is a tactic that has been used many times by justices who disagree with the obvious implications of the lead opinion, but would rather use subterfuge to try to influence lower courts than forthrightly state their disagreement. The majority opinion is the opinion of the Court. Alito's opinion is nothing more than an interpretation of the majority joined by only two justices (note that the rest of the majority did not endorse Alito's interpretation). In the Marks literature this type of decision is sometimes referred to as a "false plurality."
[Kip replies: The authority for my position is the Alito concurrence itself. I'm not sure why you think I need any other. But, if you must, then see here and here and here and here and here.]
If you want to fault Alito and Kennedy for the way they joined the opinion, fine. What I object to is attacking lower court judges for correctly applying binding Supreme Court precedent in a case in which it's directly on point. If a justice doesn't agree with everything in an opinion, he shouldn't join the opinion in its entirety. If he thinks that the logic or language of an opinion has implications that go too far, then he should make clear that he doesn't endorse it's full reach by concurring only in the judgment or concurring in part and dissenting in part.
There are a lot of things to criticize about Justice Scalia, but one thing he gets consistently right is his claim that Justices should be held fully accountable for opinions that they join, even if someone else wrote it. And he follows through on this by going so far as to reject specific footnotes in opinions that he otherwise joins.
[Kip replies: Morse is not "directly on point." Not even close. That's the whole idea. If a lower court judge wants to treat Morse as persuasive, then fine. But it's facially absurd to suggest that it's "directly on point." I'm sorry, but you seem to have an inordinate fixation with terminology that you don't even understand.]