Justice Gorsuch’s Campy Concurrence

Learning Resources had seven separate opinions. Everyone wrote something, except for Justices Alito and Sotomayor. For a regular merits decision, where time is not of the essence, publishing seven separate opinions may be overkill, but does little harm. But for a quasi-emergency-docket case, where an emergency stay is in place, the Court should proceed with all deliberate speed. Such promptness was especially appropriate because tariffs were being collected every day. Indeed, even as the Court managed to produce 170 pages in about five months, they failed to write a single sentence about the remedy, as the President pointed out in his press conference. Chief Justice Roberts insisted “We do not speculate on hypothetical cases not before us.” Yet they also don’t decide the actual remedial issue that is squarely before the Court.

What took so long? The Chief probably wrote his majority opinion before breakfast. Justice Kavanaugh articulated almost every point from his dissent at oral argument. That analysis was developed some ago, perhaps even when Judge Taranto wrote his Federal Circuit dissent. And Justice Thomas appears to have been thinking about this topic for some time. I think the reason for the delay has to be Justice Gorsuch. He decided to write a forty-six page concurrence, even though he joined the majority opinion in full. The concurrence was entirely a response to what everyone else wrote. And by writing this behemoth, Gorsuch forced Justices Barrett, Kagan, Thomas, and Kavanaugh to respond to him. And in turn, Gorsuch would have to reply to their responses. There are footnotes upon footnotes.

Yet, Justice Gorsuch’s colleagues did not give him nearly as much attention as he gave them. Justice Barrett dispatched with Justice Gorsuch’s “straw man” argument in a few pages.

To the extent that Justice Gorsuch attacks the view that “common sense” alone can explain all our major questions decisions, he takes down a straw man. I have never espoused that view.

Barrett also has a first with using the phrase “judicial flex” in an opinion:

I would not treat this evidence as precedent for a judicial flex. Justice Gorsuch proposes to do something new. The innovation is in significant tension with textualism, so I do not support the project.

Ouch.

And Justice Kagan insisted that she is not actually a convert to the major questions doctrine, and would not “relitigate” the issue further.

JUSTICE GORSUCH claims not to understand this statement, insisting that I now must be applying the major-questions doctrine, and his own version of it to boot. Given how strong his apparent desire for converts, I almost regret to inform him that I am not one. . . . I’ll let JUSTICE GORSUCH relitigate on his own our old debates about other statutes, unrelated to the one before us.

Though I am critical of Justice Gorsuch’s approach, I feel a certain kinship. I write what I believe, without regard to what others might think. Indeed, as I noted recently, I write what I write mostly for myself. It matters little to me whether people respond to me, either positive or negative. Justice Gorsuch cares about these issues profoundly. He has given them a lot of thought. He is, as we often are, entirely convinced he is correct. Gorsuch also thinks that some of his colleagues are being inconsistent. Gorsuch rightly calls Justice Kagan out for flip-flopping (see Jason Willick’s essay), and suggests that Justice Kavanaugh has not made his case. But in the end, Justice Gorsuch does not seem to persuade anyone else. I can relate.

The styling of the concurrence is unusual. He refers to the four separate writings as camps: Camp Kagan, Camp Barrett, Camp Kavanaugh, and Camp Thomas.

Past critics of the major questions doctrine do not object to its application in this case, and they even join much of today’s principal opinion. But, they insist, they can reach the same result by employing only routine tools of statutory interpretation. Post (Kagan, J., joined by Sotomayor and Jackson, JJ., concurring in part and concurring in judgment). Meanwhile, one colleague who joins the principal opinion in full suggests the major questions doctrine is nothing more than routine statutory interpretation. Post (Barrett, J., concurring). Still others who have joined major questions decisions in the past dissent from today’s application of the doctrine. Post (Kavanaugh, J., joined by Thomas and Alito, JJ., dissenting). Finally, seeking to sidestep the major questions doctrine altogether, one colleague submits that Congress may hand over to the President most of its powers, including the tariff power, without limit. Post (Thomas, J., dissenting). It is an interesting turn of events. Each camp warrants a visit.

And here, “interesting” does not mean of interest. It means inconsistent, or even hypocritical. See my post from 2016 on the meaning of “interesting.” I recalled that Justice Kagan used a similar phrasing in Seila Law. She wrote, “For those in the majority’s camp, that [Opinion] Clause presents a puzzle.”

In a case with this many opinions, I suppose it is useful to label an opinion by the authoring Justice’s name. But I don’t quite get “camp.” It comes off a bit, well, campy.