Commentary: Judicial Review

The first thing to do, before beginning your reading of Marbury v. Madison, is to read the piece by Orin Kerr “How to Read a Legal Opinion.”  This piece is available online – see the syllabus for the link.  Reading a legal opinion will be unlike other reading you may have done for classes.  There is a specific format that most cases follow, as well as specialized legal terms to know. 

Although the cases assigned may not look very long, when you first begin reading them, you may find yourself taking far longer to read and understand what a case is saying than you would ordinarily take on a textbook excerpt of similar length.  I promise, as the semester goes on, the reading becomes easier as you become more familiar with how opinions are written.

Something else to keep in mind – the Supreme Court is not always of a like mind when deciding legal issues.  You may already be aware that the Court is often fractured when rendering its decision.  You may have heard phrases such as “the Court issued a 5-4 opinion.”  Members of the Supreme Court may author one of four types of opinions.  If an opinion garners the votes of at least five justices, then it will be the Majority opinion.  This opinion has the force of law and binds all lower courts.

If, as discussed previously, a justice authors an opinion that agrees with the majority as to the outcome, but not the legal reasoning used, the justice has authored a concurring opinion.  This opinion is not legally binding, unless it is adopted by a majority of the Court in a later decision.  While it may seem counterintuitive, sometimes it is the concurring opinion that stands the test of time, while the majority fades away into obscurity.

A justice who disagrees with the outcome of the majority opinion might author a dissenting opinion.  A dissenting opinion is almost always written when the Court is divided, although it’s possible for several justices to join a dissenting opinion.  Thus, in a 5-4 case, there may be only two opinions written.  A dissenting opinion is not legally binding on lower courts, although it may become the majority opinion in a subsequent case.

Finally, a justice may write a plurality opinion.  This is an opinion that is signed onto by less than five justices, but expresses the outcome the Court desires.  This usually occurs when you can find a majority of justices to agree to the outcome (who wins and who loses) but you cannot find five or more justices who agree on the legal reasoning used in arriving at that outcome.  A plurality opinion is persuasive, but not binding.  Typically, a plurality opinion will be coupled with a concurring opinion to form the majority needed to decide the case.  One famous example of a plurality opinion is Planned Parenthood v. Casey.  In this case, a three justice plurality wrote the main opinion, while two other justices voted in favor of Casey, but for very different reasons.

One final note – it is possible for the Court to issue a per curium opinion.  These are usually, though not always, unanimous opinions, and have no specific authorship.  They are really the “opinion of the Court.”  We will not be reading many, if any per curium decisions.  Most opinions, even unanimous ones, have specific authors who are identified.
Once you have read the Kerr piece, you can turn to the assigned cases.