David S. Cohen (Drexel University Thomas R. Kline School of Law) has posted Who Joined That? *** Conclusions and Unlabeled Introductions in Supreme Court Opinions (Wake Forest Law Review, Forthcoming) on SSRN. Here is the abstract:
One of the most famous Supreme Court quotes from the Chief Justice Roberts era is his quip at the end of Parents Involved v. Seattle School District: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This pithy statement, perfectly capturing the Roberts Court’s turn in affirmative action cases to race-blind anti-classification theory, is familiar to almost everyone who has studied modern constitutional law. But here’s a quiz for you: is this quote from a majority opinion of the Court, a plurality opinion, or an individual opinion of the Chief Justice?
The answer, surprisingly, is impossible to find in the Court’s main opinion because this statement appears in the *** conclusion section of the opinion, a section that the Court never identifies who joins. The *** conclusion has become a common feature of Supreme Court opinions, but this Article shows that the Court’s failure to identify who joins these conclusions creates confusion for courts, scholars, lawyers, law review editors, and anyone else consuming or using Supreme Court opinions. The stakes here are high, as disagreement over the precedential weight of this part of Parents Involved could play an important role in the Harvard admissions case the Supreme Court is currently considering taking. The same considerations are at play with unlabeled introductions of Court opinions, which the Court also does not identify who joins.
In an attempt to sort out this confusion, this Article walks through the complexities of Supreme Court opinion *** conclusions and unlabeled introductions, attempts to solve the puzzle of determining which Justices join these sections, and ultimately concludes that the only solution is for the Supreme Court to change its practice. The Court must either stop using *** conclusions and unlabeled introductions altogether or separately indicate who joins them in the opinion’s opening joining statement. Anything less will continue the mistakes and confusion these sections currently create.
Yeah! What about that? Recommended.