There is Some Drama Brewing In San Francisco v. EPA
Today the Court decided one case, San Francisco v. EPA. As I predicted, the majority opinion was assigned to Justice Alito. (My other predictions for the other October sitting cases look to be on track.) But the breakdown was unusual. Here is the description from the syllabus:
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS and KAVANAUGH, JJ., joined, in which GORSUCH, J., joined as to all but Part II, and in which SOTOMAYOR, KAGAN, BARRETT, and JACKSON, JJ., joined as to Part II. BARRETT, J., filed an opinion dissenting in part, in which SOTOMAYOR, KAGAN, and JACKSON, JJ., joined.
The majority votes to reverse the Ninth Circuit. Justice Gorsuch does not join Part II, and does not write separately to explain why. But Justice Gorsuch does join Part III of the majority, which explains why the Court will reverse the Ninth Circuit. Justices Barrett, Sotomayor, Kagan, and Jackson only join Part II, but they do not join Part III. As I read the opinion, the Barrett quartet would affirm the Ninth Circuit. By all accounts, Barrett did not “dissent in part.” She outright dissented. If anything she concurred in part, dissented in part, and dissented from the judgment.
I agree with Ed Whelan’s analysis:
Justice Alito’s majority opinion reverses the Ninth Circuit ruling. In what she labels an opinion “dissenting in part,” Justice Barrett and the three justices (Sotomayor, Kagan, and Jackson) who sign on to her opinion “join Part II of [Alito’s] opinion.” But they disagree with his argument in Part III and thus would affirm the Ninth Circuit.
Perhaps I’m missing something, but it sure seems to me that Barrett’s opinion is a straight dissent.
Relatedly: As I understand the traditional practice, any opinion that is a dissent in part must also be a concurrence in part.
Article from Reason.com
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