132. Supreme incompetence

The most telling part of the Guantanamo Bay decision occurs right at the beginning:

 Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI-D-iii, VI-D-v, and VII, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts V and VI-D-iv, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which Kennedy, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed an opinion concurring in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Parts I and II. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, and in which Alito, J., joined as to all but Parts I, II-C-1, and III-B-2. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined as to Parts I through III. Roberts, C. J., took no part in the consideration or decision of the case.

I never thought I'd feel sympathy for a White House spokesman facing routine questions, but I admit to a twinge of empathy when reporters this morning demanded a comment from Tony Snow.  Before you can make a comment, you first have to make a chart to figure out whether part VI-D-iv actually is or is not a ruling of the Supreme Court of the United States.

This business of the justices in the majority writing separate opinions is, I think, a relatively recent development.  Because Justice Kennedy's vote is necessary to form the majority for those parts of Stevens' opinion that are a majority opinion, does that mean Kennedy's long separate opinion has a special status?  [UPDATE: According to Dahlia Lithwick, Kennedy's own answer to that question would be an emphatic yes.  She writes in the Washington Post that Kennedy maneuvers to make his separate opinions the crucial fifth vote: "The trick is that the justice who decides the case most narrowly speaks for the whole court."]  What about Breyer's short concurrence?  Why didn't Stevens join that and turn it into a co-majority opinion - because he disagreed with it?  What's to disagree with?  And so on.

Would it kill the justices to assemble an opinion before releasing its pieces to the public?  All they need to do is figure out which parts at least five of them agree with, and then put those parts in a separate section at the beginning.  Call it "per curiam" if they must.   The justices could then attach all their individual discussions at the end, like so many streamers from a kid's handlebars, and we could ignore them. 

But then we'd ignore them.  So you can see why the justices prefer the some-assembly-required format.  The lawyer who wants the bottom-line answer - what's lawful? - is like the shopper who wants nothing but a gallon of milk.  The supermarkets put it in the back because they prefer to sell you other things, too.

Besides, with their ever-shrinking workload, the justices feel compelled to cram as much dicta as possible into every case. They might never have another chance to address the issue.  (See post 121.)   For justices who want to remake the law in their own image - and what other sort of person aspires to the job? - the incentive is to get one's views into the pages of the United States Reports, not to reach consensus, still less to compromise. 

202 years ago Chief Justice Marshall told us "[i]t is emphatically the province and duty of the Judicial Department to say what the law is."   This Court doesn't tell us what the law is; it tells us what nine lawyers think it should be.