By definition, there is no such thing as a majority, much less a unanimous, concurrence. That essay is either the rationale for the holding or obiter dicta. Since we can assume that these judges know what a "concurrence" is, the question is, why deliberately mislabel this writing in a way guaranteed to draw maximal attention to it? The sub-text may be an awakening to the fact that the court has fetishized the superfluous and redundantly named "prior precedent" rule to the point where the first opinion on an issue is treated as legislation rather than as a precedent. The reach of a precedent in a common-law system is limited by the case's facts and the judges' analysis, subject to revision under different facts or a more complete analysis. Given that, what need is there for a "rule"? If the first panel is convincing, its opinion controls. Why should an unconvincing opinion control? The first-panel-makes-law rule is harmful to litigants. It encourages judges to overreach the facts and the law so as to "bind" the whole court (the way Matchett did). In that way, later litigants are "bound" by the first brief on an issue, even if it was not very well researched or presented. Hopefully, this writing is a sign that this insidious and unnecessary rule's days are numbered.
Monday, July 11, 2016
“Now it’s time for us to move to New Zealand.”
That was Justice Ginsburg in an interview with the NYT saying what would happen if Trump won:
Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach.
These days, she is making no secret of what she thinks of a certain presidential candidate.
“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”
It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.
“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.Last week, I posted about the 3-judge concurrence in the 11th Circuit. Professor Bascuas has criticized the practice in the comments: