The Road to Bush v. Gore:1 the History of the Supreme Court's Use of the Per Curiam Opinion

• Publication year: 2021
• Citation: Vol. 79

79 Nebraska L. Rev. 517. The Road to Bush v. Gore:1 The History of the Supreme Court's Use of the Per Curiam Opinion

517

Laura Krugman Ray*

The Road to Bush v. Gore:1 The History of the Supreme Court's Use of the Per Curiam Opinion

TABLE OF CONTENTS

I. Introduction .......................................... 518
II. The History of the Per Curiam Opinion as a Form of
Judicial Expression ................................... 521
A. The Background: An Instrument of Consensus ......... 521
B. The Transformation: The Decline of Consensus ....... 524
III. The Per Curiam and the Idea of Individualism .......... 530
A. The Emergence of the Separate Voice ................ 530
B. The Pursuit of Consensus ........................... 533
IV. The Per Curiam as a Strategic Device .................. 536
A. Achieving Efficiency ............................... 537
B. Working by Indirection ............................. 538
C. Creating New Law ................................... 541
D. Using Procedure as a Screen ........................ 548
E. Disciplining Courts and Litigants .................. 549
V. The Per Curiam and Individual Expression .............. 550
A. The Minimalist Opinion and Efficiency:
New York Times Co. v. United States ................ 551
B. The Minimalist Opinion and Personal Liberation:
Furman v. Georgia................................... 555
C. Collaboration and the Broader Vision:
Buckley v. Valeo ................................... 557
VI. The Per Curiam and the Rehnquist Court ................ 561
A. The Prologue: A Limited Role ....................... 561
B. Bush v. Gore: The Return to Center Stage ........... 568
VII. Conclusion ............................................ 575

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I. INTRODUCTION

Justice Stephen Breyer recently caused a minor stir when he used the pronoun "I" in a Supreme Court majority opinion.2 After surprised Court observers called the usage to Breyer's attention, he disclosed that it was "inadvertent" and would be corrected.3 Why should the choice of pronoun generate even a minor stir and prompt a judicial retreat? Breyer had departed from a long-standing convention that dictates that a Justice writing for the Court may speak in the first person plural - "we" - but not in the first person singular. Even though a single Justice signs the opinion by name, the text insists throughout on its shared provenance as the voice not just of its author but of all those who have voted to join it.

This traditional balance of the institutional and the personal has shifted in this century from the Court's earlier insistence on presenting what Learned Hand termed "monolithic solidarity" to the world.4 That insistence began with Chief Justice Marshall's determination that the Court should no longer resolve its cases seriatim*, with each Justice writing separately, but instead in a single, unified opinion.5 The resulting culture of the Court, one that discouraged both dissenting and concurring opinions as assaults on this unified front, persisted from Marshall's day into the 1930s.6 The Court in the nineteenth and early twentieth centuries thus deliberately submerged the idea of a personal voice in the fiction of a collective voice, one that spoke for the institution rather than for the Justice who served as its designated scribe.

The monolith began to splinter in the early decades of the twentieth century and today is barely recognizable. With the dramatic up

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surge in the number of separate opinions, both dissents and concurrences, written by the Justices since the late 1930s,7 there has been no lack of opinions speaking directly, sometimes even emotionally, about their authors' individual positions. As the reaction to Justice Breyer's misstep indicates, however, those inside and outside the Court still value the ideal of a majority opinion that avoids any overt signs that it reflects the personal views of its individual author, even while Court scholars continue to assess the Justices' jurisprudence based largely on their signed opinions. The consequence for the Court of this tension between institutional and individual authorship is a more complicated and more finely calibrated jurisprudence, one in which Justices dutifully refrain from using "I" in their own majority opinions but feel free to pick and choose among the parts of a col-league's opinion, joining only those which they wholeheartedly endorse and writing separately to detail their points of divergence.

This shifting balance between the impersonal and the individual is evident as well in the history of what was traditionally the most impersonal variety of opinion, the per curiam, which suppressed not only the identify of its author but the idea of attributed authorship itself. In its earliest appearances, the per curiam was true to its name, authored anonymously and presented "by the Court" rather than by a designated Justice to express a result that enjoyed full institutional support.8 The subtext of a per curiam was clear: this case is so easily resolvable, so lacking in complexity or disagreement among the Jus

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tices, that it requires only a brief, forthright opinion that any member of the Court could draft and that no member of the Court need sign. The per curiam was not, however, insulated from the shift in the Court's opinion-writing process from impersonality to individual expression. Rather, the per curiam has functioned as a microcosm of that shift, reflecting in its evolution the increasing tendency of the Justices to assert their personal views even in the most impersonal context.

Thus, in the late 1930s, as concurrences and dissents proliferated, the role of the per curiam also changed. Per curiam opinions increasingly came with dissents attached, creating an oxymoronic form, one that simultaneously insisted on both institutional consensus and individual disagreement. In the 1950s and 1960s the Court also found that the impersonal nature of the per curiam made it the ideal instrument for a variety of strategic purposes, from the efficient resolution of urgent cases to the evasion of controversial issues and the making of new law by indirection. By the 1970s the Court had adapted the per curiam to a purpose diametrically opposed to its original use, producing per curiam opinions accompanied by as many as nine separate opinions, each asserting a strong and independent position. In its most elaborate incarnations, the per curiam finally became its own antithesis, the vehicle for three of the Court's most challenging and most splintered constitutional cases of this century.

Then, in eight days in December 2000, the Supreme Court added a dramatic new chapter to the history of the per curiam opinion. As George W. Bush and Albert Gore, Jr. jostled for legal advantage in resolving the disputed presidential election results in Florida, the country speculated about the role the Supreme Court was likely to play and the way each Justice might vote. Twice the Court granted certiorari petitions from Governor Bush to review decisions of the Florida Supreme Court permitting vote recounts to go forward, and twice, after accelerated briefing and oral argument schedules, the Court issued prompt per curiam opinions. On December 4th, the first of these opinions, Bush v. Palm Beach County Canvassing Board*,9 vacated the Florida court opinion and remanded for clarification, a muted task well-suited to the modest role usually assigned the per curiam. The second opinion, however, Bush v. Gore*,10 was far less modest. It effectively concluded the election in favor of Governor Bush by identifying an equal protection violation in the recount process and precluding any further recount on the grounds that it was too late to

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complete a constitutionally acceptable process before a December 12th deadline set by federal law.

The Court had never before resolved a presidential election, and it had rarely if ever performed its opinion-writing role in the glare of such avid and sustained attention from the media and the nation. Yet, when the opinion emerged, in another departure from the Court's usual methodical practice, shortly before 10:00 p.m. on December 12th, it too proved to be a per curiam with no indication of authorship. The Court's unsigned opinion was accompanied by one concurrence and four dissents, so there was little difficulty in understanding the positions taken explicitly by seven of the Justices and deducing the positions of their two silent colleagues. Yet, at this extraordinary moment in American history, when the Court assumed an unprecedented role as arbiter of the presidential election, it chose to speak collectively in the most self-effacing judicial form available to it. Why did the Court issue its historic opinion as a per curiam? The answer to that question lies at the end of a long and largely unexamined road, the Court's evolving use of the per curiam opinion as a flexible and strategic instrument of Supreme Court jurisprudence over the past one hundred and forty years.

Viewed against the backdrop of the Court's increasingly individualized opinion writing, the evolution of the per curiam encapsulates the larger history of the Court's refinement of its decisionmaking role. An examination of the ways in which the Court has adapted the per curiam to its changing needs will also chart the uneven course of the Court's continuing struggle to balance its institutional role as an agent of consensus against the demands of its Justices for individual expression.

II. THE HISTORY OF THE PER CURIAM OPINION AS A FORM OF JUDICIAL EXPRESSION

A. The Background: An Instrument of Consensus

The Supreme Court's first officially designated per curiam opinion to be published appeared in 1862, when the Court in Mesa v. United States*11 proclaimed, "Let this appeal be dismissed" for failure to file a...