Wednesday, December 9, 2009

Justice Sotomayor, Civil Procedure, and the "Tradition" of Unanimous Debut Opinions

Yesterday brought the Supreme Court's first decision in a case argued this Term. The Court in Mohawk Industries v. Carpenter writes:

"The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege."

The issue of when interlocutory district court orders can be immediately appealed is one that's particularly interesting to me (though perhaps not to many others outside the civil procedure world). From a historical perspective, Mohawk is significant as the first opinion authored by Justice Sotomayor. She is thus forever linked to civil procedure (as is Chief Justice Roberts, I might add, whose debut opinion involved the attorney-fee provision in 28 U.S.C. § 1447(c). See Martin v. Franklin Capital Corp., 542 U.S. 132 (2005)).

Justice Thomas's concurring opinion in Mohawk has also attracted attention. Although he agrees with the Court's result, Justice Thomas writes that Justice Sotomayor's opinion "needlessly perpetuates a judicial policy that we for many years have criticized and struggled to limit." He concludes:

"I would leave the value judgments the Court makes in its opinion to the rulemaking process, and in so doing take this opportunity to limit -- effectively, predictably, and in a way we should have done long ago -- the doctrine that, with a sweep of the Court's pen, subordinated what the appellate jurisdiction statute says to what the Court thinks is a good idea."

Some have argued that Justice Thomas's opinion contravenes the Supreme Court's "tradition" that a new Justice's first opinion be a unanimous one. (See Eric Muller's post at The Faculty Lounge: Clarence Thomas "Welcomes" Sonia Sotomayor to the Supreme Court). The New York Times described the concurrence as "testy" and "a swipe at his new colleague." On the other hand, Mohawk was unanimous in the sense that all nine Justices agreed in the result. And Justice Thomas did sign on to two whole paragraphs of Justice Sotomayor's opinion ("I concur in the judgment and in Part II-C of the Court's opinion"). What do folks think?

At the end of the day, maybe it doesn't really matter. Justice Breyer did not enjoy the benefit of this so-called tradition. He prompted outright dissents from Justices Scalia and Thomas in his first opinion. See Allied Bruce Terminix v. Dobson, 513 U.S. 265 (1995). Then again, Justice Breyer went on to serve a remarkably long tenure as the Court's most junior Justice. Could there be a "Curse of the Nonunanimous Debut Opinion"?

--A

(Cross-posted at Concurring Opinions)

http://lawprofessors.typepad.com/civpro/2009/12/justice-sotomayor-civil-procedure-and-the-tradition-of-unanimous-debut-opinions.html

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Comments

The supposed tradition was also upset in Justice Blackmun's debut opinion, Wyman v. James, which drew dissents from Douglas, Marshall, and Brennan.

Posted by: Tim | Dec 17, 2009 11:52:21 AM

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