Concurring in part & concurring in the confusion.

• Author: West, Sonja R.

TABLE OF CONTENTS I. THE CONCURRING CONFUSION II. THE CONFUSION CONTINUES III. ANALYZING THE CONFUSION IV. THE COURT'S HISTORY CLEARS THE CONFUSION I regret that I cannot concur but shall not dissent.

--Justice Sanford (1)

When a federal appellate court decided last year that two reporters must either reveal their confidential sources to a grand jury or face jail time, the court did not hesitate in relying on the majority opinion in the Supreme Court's sole comment on the reporter's privilege--Branzburg v. Hayes. (2) "The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter," Judge Sentelle wrote for the three-judge panel of the Circuit Court of Appeals for the District of Columbia. (3)

By this declaration, the court dismissed with a wave of its judicial hand the arguments made by the reporters and media amici that the court should follow the more lenient concurring opinion of the fifth justice in Branzburg, Justice Powell, rather than the restrictive opinion of the Court authored by Justice White. The reporters had contended that while Justice White's opinion rejected any constitutional privilege in this situation, Justice Powell's concurrence advocated a case-by-case balancing approach and thus left an opening for a constitutionally based privilege. Because it provided the crucial fifth vote in the case and was the "least common denominator" between the views of the majority and the dissenters, Justice Powell's opinion should control, the reporters had submitted. (4)

The reporters' argument was certainly not a new one; numerous courts and commentators had interpreted Branzburg in the same manner. The Third, Fourth, Fifth, and Ninth Circuit Courts of Appeals all have pronounced Justice White's opinion to be a mere "plurality." (5) And Justice Stewart, the chief dissenter in Branzburg, later declared that the case was decided by "a vote of four and a half to four and a half." (6) Some courts and commentators, moreover, have concluded that Branzburg was a five to four victory for the press, with Justice Powell's concurrence plus the four dissenters actually creating a qualified reporter's privilege--the exact holding Justice White's opinion rejected. (7) As Professor Rodney Smolla surmised, "[t]he important point of the story [was] that a short concurring opinion by a Justice who actually joined the opinion of the Court in Branzburg in effect superseded the majority opinion and became the prevailing law of the land." (8)

The D.C. Circuit, however, would have none of it. Writing with an air of perplexity in response to the reporters' argument, the panel easily dismissed Justice Powell's concurrence as mere surplusage:

Justice White's opinion is not a plurality opinion of four justices joined by a separate Justice Powell to create a majority, it is the opinion of the majority of the Court. As such it is authoritative precedent. It says what it says. It rejects the privilege asserted by appellants.... In any event, whatever Justice Powell specifically intended, he joined the majority. (9) Scanning the D.C. Circuit's decision on my way to teach Branzburg to my Media Law Seminar, I was surprised by the panel's surety that White's opinion should be treated as a true majority. What exactly made the D.C. Circuit so confident of Justice Powell's acquiescence in Justice White's reasoning, particularly when Powell's separate writing seemed to contradict it? If White's opinion were treated as a plurality, then Powell's concurrence would be the law. So why such faith that the White opinion governs?

1. THE CONCURRING CONFUSION

   It appears that the answer, remarkably, must lie with a solitary but crucial word in Justice Powell's concurrence. It is the fourth word of the opinion, the one that follows the comma after the Justice's name: "Mr. Justice Powell, concurring." (10) If the comma had been followed by one of the other phrases in the justices' handbag, such as "concurring in part," "concurring in the judgment," "concurring in the result," or some combination thereof, then the panel would have viewed Branzburg quite differently. Had Justice Powell concurred in part, for example, then the D.C. Circuit would have admitted that at least some of Justice White's analysis did not have the support of five votes. Presumably, it would have turned to Justice Powell's concurrence for further insight.

   The Supreme Court itself, moreover, has told us what to do in such a situation, explaining that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" (11) This "narrowest grounds" analysis is the exact approach the reporters were advocating to the D.C. Circuit. But, unfortunately for the reporters, Justice Powell did not select the phrase "concurring in part" to follow the comma after his name, and he did not pick "concurring in the judgment," either; instead he used the simple word "concurring." And therefore, as far as the D.C. Circuit was concerned, everything he wrote after that word added nothing more than "emphasis"--even when it is obvious to many that Justice Powell did not wholly accept Justice White's approach. (12)

   This counterintuitive outcome leads me to question whether these laconic "after the comma" phrases deserve such power--the power to override even the more detailed analysis that follows in the body of the opinion. Should it be that by not concurring "in part," Justice Powell thereby relegated all the other words in his opinion to nothing more than judicial residue? I believe the answer to this question is no.

   When it is self-evident that the rationale of the primary opinion does not hold the support of five justices, it should not be treated as a majority, no matter how many justices allegedly concurred. Three primary reasons support this conclusion. First, logic dictates that courts should not look the other way and blindly follow a false majority. Second, the justices do not use these "after the comma" phrases in a uniform or consistent enough manner to merit such authority. Finally, the Supreme Court's history of seriatim opinion writing supports the conclusion that the justices' separate writings are meant to be dissected and interpreted on an individual basis. In sum, I disagree with the D.C. Circuit's view that we must damn to legal oblivion "whatever Justice Powell specifically intended" simply because he made the choice to "concur" in the majority opinion. Instead, these "after the comma" phrases should be seen as mere guidelines to the justices' positions but should not be...