Heller: Plurality option?

[ctdonath]

The latest buzz about Heller is the possibility that the result will be a plurality opinion. From SCOTUSblog:

10:39 Jason Harrow - Clarification: while it appears that Justice Scalia has the principle opinion in the Guns case, it is not necessarily a majority opinion. It could be a plurality opinion.

In the interest of rescuing another discussion from threadjacking, I'm copying the key points here:

Originally Posted by answers.com
The U.S. Supreme Court decides cases by majority vote; more than half of the justices participating must vote in favor of the decision. If the justices in the majority agree to sign a single opinion, they produce a majority opinion for the Court. Now and then, however, there are so many individual concurring opinions that the opinion that garners the most votes is called not a majority opinion but a plurality opinion.

For example, in Dennis v. United States (1951), the Court decided the case by a vote of 6 to 2 (one justice did not participate). Two justices wrote separate concurring opinions and thereby made it impossible for there to be a single majority opinion for the Court. Instead, there was a plurality opinion (signed by four justices), supported in many respects by two justices' concurring opinions, and opposed by the other two justices' dissenting opinions. Thus, Chief Justice Vinson announced the decision of the Court based on a plurality opinion.

BlisteringSilence writes:

In other words, the decision of the lower court is upheld, but the reason for such is not agreed upon by a majority of the court (5 or more), but simply a plurality of the court (3 or more). If you agree with the decision, but not with the reasoning for such decision, and you write a concurring opinion, you can still vote for the affirmation of the decision (the district court's decision is upheld), but not agree with the majority opinion (which is widely believed to be written by Justice Scalia).

What it means is that the case thats decided doesn't really get entered into the canon of law, as the SCOTUS gives no majority guidance to the underlying courts.

Have at it.

 

[buzz_knox]

It's not entirely correct to say that a plurality doesn't get included in the "canon." It's still a Supreme Court decision. The fact that isn't a majority opinion allows courts more latitude when distinguishing it, but they aren't supposed to act as if it doesn't exist.

 

[shdwfx]

A plurality decision on Heller would be a gutless, political cop-out.
Why drag out reporting their landmark decision if the best they could do was less than a decisive ruling?

 

[ctdonath]

Per Wikipedia:

"It is crucial to note that plurality opinions are not binding. They are often treated as majority opinions, because by the time a similar case is considered, a 5th Justice has come around. However, in reality, they are just interesting dicta, showing continued flux and ambivalence on the part of the Court."

dirtbos:

The part of the decision we are interested in may be of no consequence.

leadcounsel:

Plurality explained: http://law.wustl.edu/journal/4/Hochschild.pdf
If 5 out of 9 agree on a rationale, it is a majority decision. If less than 5 agree on a rationale, then there is a plurality decision. It's effectively a fractured opinion.

arthurcw:

So essentially right back where we were. No road to incorporation and the court, packed by a socialist senate, can simple change its mind in a few years.
What was the point?

 

[ctdonath]

Actually, a plurality might be favorable: the lower court's opinion is excellent, and a SCOTUS plurality upholding it can be interpreted as a "yeah, what he said" without smothering it with a less desirable greatest-common-denominator opinion.

 

[arthurcw]

Actually, a plurality might be favorable: the lower court's opinion is excellent, and a SCOTUS plurality upholding it can be interpreted as a "yeah, what he said" without smothering it with a less desirable greatest-common-denominator opinion.

But it settles nothing. without a clear majority opinion, there is nothing to incorporate.

 

[ctdonath]

A plurality should still allow for incorporation on "equal protection" grounds. So long as the only difference between one ban and another is jurisdiction, incorporation should be a slam-dunk if the DC Circuit's Parker verdict is upheld.

FWIW: any future SC can reverse any past decision.

 

[HeavyDuty]

The latest buzz about Heller is the possibility that the result will be a plurality opinion.

No, it's an observation that a plurality opinion is a *possibility*.

Y'all need to chill now. Seriously! Don't go borrowing indigestion.

 

[RancidSumo]

I agree that it would be a pretty gutless move on their part.

 

[Rugerlvr]

Patience friends. I realize tomorrow is a bit akin to Christmas, were we kids, but take a few deep breaths, drink a calming beverage of your choice, and tomorrow will be here sooner than we know it.

 

[ctdonath]

HD: the semantic difference being...?

 

[Bubbles]

Patience friends. I realize tomorrow is a bit akin to Christmas were we kids, but take a few deep breaths, drink a calming beverage of your choice, and tomorrow will be here sooner than we know it.

To shamelessly steal a quote from another site, we could either wake up this Christmas to find that we got a pony, or that Grandpa died.

I won't have fingernails left in 24 hours...

 

[arthurcw]

To shamelessly steal a quote from another site, we could either wake up this Christmas to find that we got a pony, or that Grandpa died.

I won't have fingernails left in 24 hours...

I was optimistic until today. I think I'll send my black suit to the cleaners in anticipation.

 

[ctdonath]

Kharn wrote elsewhere:

scotusblog has a policy of no predictions, so I bet the second comment was a CYA when he realized that he'd published a statement in breach of that policy.

 

[dirtbos]

Lets hope logic prevails

From my perspective, it can go either way. If it goes against us, it will be a purely ideological decision. It will not matter to the majority what is written in the Constitution as their personal agenda will prevail. A very weak position for them to be in (which will not matter much to the left wing extremists on the court). If the interpretation is clouded by left wing ideology, the backlash will be severe.


On the other hand, if the 2ND Amendment is interpreted as written, it will go our way.


We can only hope that there is a majority of honest Justices on the court.

 

[arthurcw]

We can only hope that there is a majority of honest Justices on the court.

And that is the fear. There won't be a majority. Part of the whole hope with this was that it would be a firm stepping stone to either continue the fight or redirect the fight to the state level.

Looks like those who wanted it out of the court may have been right.

 

[HeavyDuty]

HD: the semantic difference being...?

That the only "buzz" is in the self-immolation that's happening here. A plurality decision is *always* a possibility, but is by no means common.

 

[Deanimator]

To shamelessly steal a quote from another site, we could either wake up this Christmas to find that we got a pony, or that Grandpa died.

OR that you got a pony for Christmas AND he kicked to death Grandpa who liked to touch you in places that made you uncomfortable.

There's no sense to dragging out a nothing decision. I don't think that Brady and VPC were talking through their hats when they issued their doom and gloom (for them) statements. I think they were tipped off by Ginzberg's people that it's VERY bad news for them.

I think the BEST they can hope for is that the court gives them exactly what they claim to want, namely "reasonable" gun laws. No bans, everything shall issue, no onerous fees or restrictions. If they got what they SAY they want, it'd be a CATASTROPHE of nightmarish proportions for them. And that's the BEST they can hope for.

 

[Bartholomew Roberts]

It is crucial to note that plurality opinions are not binding.

I wouldn't go that far. Plurality opinions are still the law and can still be reliably interpreted. The only difference in a plurality opinion is that it might be overturned as some Justices are replaced.

Personally it would not surprise me to see a plurality opinion. This is a historic case and the likelihood that Justices will concur in the result but not the rationale is high given the makeup of the Court.

To give an example:
Roberts, Alito, Scalia: The Second is an individual right. No need t decide scrutiny.

Thomas, Kennedy: The Second is an individual right and strict scrutiny applies.

Ginsburg: Second is an individual right subject to rational basis review.

Stevens, Breyer, Souter: Second is not an individual right.

This is a plurality opinion; but it still firmly establishes (6-3) an individual right and puts 2 on the scoreboard for strict scrutiny.

I don't see that as a cop-out or a negative myself.

 

[Jadecristal]

I guess that curse has fallen upon us - the one that goes, "May you live in interesting times."

 

[arthurcw]

I guess that curse has fallen upon us - the one that goes, "May you live in interesting times."

To quote the great philosopher George Jetson, "HELP! JANE! STOP THIS CRAZY THING!!!"

 

[NC Dave]

IMHO, I think everyone is reading too much into the statement that was posted on SCOTUSBlog.

10:39 Jason Harrow - Clarification: while it appears that Justice Scalia has the principle opinion in the Guns case, it is not necessarily a majority opinion. It could be a plurality opinion.

I think this is nothing more than a CYA statement by Harrow. I don't read any more into it than that. It is kind of like saying, "I am going to the store today or I am not." Well, duh.

 

[Thumper]

Goodness, arthurcw...you're starting to bring ME down. You're losing all of your hope over some freaking internet conjecture about a possibility?

Slow down, bro.

 

[Cosmoline]

I'm a little worried, too. The opinion has taken a long time to come out which could quite possibly be the result of attempts to resolve disagreements. The court does not like to resort to plurality opinions.

In the end you can have a mixed bag, with "head counting" on issues between the various opinions. So you can have a split on one issue, and a majority on another. It can get insanely complex.

 

[DonP]

My new favorite comment on Heller, courtesy of a post on the Volokh Conspiracy.

"Well maybe there's another reason for the delay.

My fantasy is that, after delivering a 9-0 decision holding gun control laws are per se unconsititional, respondent Dick Heller is asked to approach the bench. The justices present him with a "US Supreme Court" special edition Kimber model 1911 pistol in a handsome wood presentation case signed by all the justices.

Maybe the shipment from Kimber got delayed?"