Patterico's Pontifications


Someone Explain to David Savage the Difference Between a Plurality and a Majority

Filed under: Court Decisions,Dog Trainer,General,Law — Patterico @ 1:17 pm

David Savage’s L.A. Times article on the forced integration decision says:

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John G. Roberts Jr. wrote in the majority opinion. Public schools must “stop assigning students on a racial basis,” he said.

Actually, that language is from Part IV of the opinion, which Justice Kennedy did not join. So it’s (unfortunately) not accurate to say it’s language from “the majority opinion.” It’s from a portion of the opinion that enjoys only a plurality, and does not have the same precedential effect. Similarly, the paper runs a separate AP piece that purports to quote passages from the “majority opinion” — and proceeds to quote passages from sections commanding only a plurality of votes.

I’m not going to make my usual sweeping indictment of the paper here; this is an easy point to miss. But it’s an important one, because it goes to the exact significance of the language in the decision. What I find interesting is that the editorial on the case picked up on the subtleties missed by the legal affairs reporter:

Thursday’s decision could have been worse. By refusing to sign the most objectionable sections of Roberts’ opinion, Justice Anthony M. Kennedy prevented a majority of the court from endorsing the simplistic notion that using race to bring children together is just as unconstitutional as using race to keep them apart. Kennedy also made it clear that schools could promote racial integration indirectly, such as by deciding where to locate new schools. Finally, even Roberts’ opinion doesn’t rule out the use of race in remedying the effects of past intentional segregation, which officials in some districts — including L.A. Unified — see as the rationale for programs that take race into account in pupil assignment.

Maybe the person who wrote that editorial should be assigned to cover the Supreme Court. Sure, the writer is biased, but no less so than Savage. And he or she does a better job than Savage did in explaining the meaning of the opinion.

P.S. I’ll be writing the Readers’ Rep about this — for accuracy’s sake.

P.P.S. Upon further reflection, even the term “plurality” doesn’t seem accurate for a portion of the opinion that garnered four votes, when there is a dissent that also commanded four votes. Better simply to note that there were portions of Roberts’s opinion that didn’t command a majority, and whose precedential value is thus highly questionable.

P.P.P.S. Then again, the sections of Roberts’s opinion not joined by Kennedy are described by the other Justices as the “plurality opinion.” This is because it’s traditional to use that term to refer to an opinion signed by four Justices, when the fifth, deciding vote is cast by a Justice who concurs in the judgment only. I suppose I’ll continue to use that term to describe those sections of Roberts’s opinion, since the Justices do — even though it seems slightly odd in the particular circumstances of this case.

Although the use of the term “plurality” is potentially debatable, the use of the term “majority” is clearly wrong.

7 Responses to “Someone Explain to David Savage the Difference Between a Plurality and a Majority”

  1. This is a bit odd, while I do not care for Savage’s lack of objectivity in his history of coverage of the Supreme Court, I do believe he understands the issue of plurality opinions.

    Robin Roberts (6c18fd)

  2. Even “conservative” judges cannot be counted on to stand too tall on controversial decisions. The days of courage in the open air are gone for ever I fear.
    Most political people, elected or appointed, and I include all judges in this group, have one eye on what they are saying and the other eye on who is listening. If repercussions are possible, the butt hole tightens, and the crawfishing begins.

    Edward Cropper

    Edward Cropper (082de5)

  3. the simplistic notion that using race to bring children together is just as unconstitutional as using race to keep them apart

    That’s stated as if it were a bad thing.

    The government has no business mandating that children be assigned by race to school. Period.

    Darleen (187edc)

  4. Reports I have read say that Kennedy only quibbled with a few absolutist positions taken by Roberts and for the most part it IS a majority opinion. I.e. Kennedy would allow some use of race in some circumstances that Roberts et al wouldn’t, but mostly agreed.

    Assuming that Roberts’ opinion was in no place weaker than Kennedy, that would make Kennedy’s partial concurrence the “majority opinion.” Or something like that.

    Kevin Murphy (0b2493)

  5. Kennedy has left the door open to yaers of litigation.

    Davod (3392f5)

  6. PS:

    To the layman Kennedy seems to have taken up the wishy washy line typical of O’Connor. Do you think he employed some of O’Connor’s staff when she retired?

    Davod (3392f5)

  7. The number of dissenters is irrelevant in determining whether an opinion constitutes a plurality. What is relevant is that more Justices agree with the rationale announcing the judgment of the Court than with any other (nondissenting) rationale.

    Lester Knox (cd1247)

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