Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals

Surely you remember this fairly recent Supreme Court case. 5-4 split. Issued shortly before an upcoming election amid fierce political battles. Majority and dissenting opinions follow a predictable fault line. Complicated issue involving fundamental questions about the reach of sovereign authority. Nothing come to mind? Here’s another hint. Think cattle ranching.

Still nothing? Let’s end the suspense with a citation: Plains Commerce Bank v. Long Family Land and Cattle Co., Inc., 128 S. Ct. 2709 (2008).

This citation likely means little unless your practice focuses on the law relating to Indian tribes. For those whose practices do not, here’s a quick overview from the introduction to Chief Justice Roberts’s majority opinion.

“This case concerns the sale of fee land on a tribal reservation by a non-Indian bank to non-Indian individuals.” Id. at 2714. “Following the sale, an Indian couple, customers of the bank who had defaulted on their loans, claimed the bank discriminated against them by offering the land to non-Indians on terms more favorable than those the bank offered to them.” Id. “The couple sued on that claim in tribal court; the bank contested the court’s jurisdiction.” Id. “The question presented is whether the tribal court had jurisdiction to adjudicate a discrimination claim concerning the non-Indian bank’s sale of fee land it owned.” Id. “We hold that it did not.” Id.

From a writing standpoint, there is much to praise about the opinion’s efficient introduction to a legally complicated dispute centered on business dealings between a cattle ranch and a bank.

The introduction summarizes key facts and the issue presented in a handful of not-overly-complex sentences. This summary sets up the discussion that follows in more than 30 pages of dense back-and-forth between the majority opinion (in which Chief Justice Roberts is joined by Justices Scalia, Kennedy, Thomas, and Alito) and the dissenting opinion (written by Justice Ginsburg and joined by Justices Stevens, Souter, and Breyer).

There’s a sporty semi-colon too, the appearance of which confirms Chief Justice Roberts’s membership among the .0001 percent of the writing population that knows how to employ this device properly in the service of subtle information delivery to readers. More than a comma; less than a period.

While the sub-atomic grammar is worth noting, the opinion’s 5-4 nature also warrants attention in light of a new study by Professor Cass R. Sunstein of Harvard Law School.

According to Professor Sunstein’s research, Supreme Court decisions divide pretty neatly at 1941. Individual justices concurred or dissented infrequently before 1941, and 5-4 decisions were rare. Since 1941, the frequency of concurring opinions, dissents, and 5-4 decisions has increased dramatically while the number of unanimous opinions has declined. He attributes this shift in large part to the arrival of Chief Justice Harlan Fiske Stone, who believed in the clash of ideas; often wrote separately; and encouraged other newly arrived and like-minded justices to do so. He concludes that Stone displaced a consensus-based norm established by Chief Justice John Marshall and replaced it with an emphasis on individual writing that continues today.

Professor Sunstein also explores whether there is an empirical basis for a view that unanimity increases the acceptance and legitimacy of high court opinions while extensive disagreement among the justices has the opposite effect. He pronounces the empirical foundation for this view to be “fragile” and concludes: “The post-1941 norm cannot be shown to compromise the Court’s role in American government, or to disserve the constitutional order.”

So, does Plains Commerce Bank’s holding carry less weight because it was a 5-4 decision? I’m guessing the answer is “No” if your client needs to know the jurisdictional limits of a tribal court – or the answer to a thousand other highly technical legal issues decided by the Supreme Court. 5-4 gets you to the same answer as 9-0.