Did US v Zubaydah Create Precedent?

The recent decision in US v. Zubaydah overtly implicated important matters like torture and state secrets. But it also raises an interesting, possibly consequential question regarding the relationship between judgments and precedents. 

In brief, the case involved a request for discovery relating to the alleged torture of Zubaydah while held in a so-called “black site.” The Court denied the discovery request in what looks like a normal majority decision. Most of Justice Breyer’s opinion was joined by Roberts, Kavanaugh, Barrett, and Kagan and so was labeled the “Opinion of the Court.” Yet Kagan did not join the judgment of the Court. Whereas the majority reversed and remanded with instructions for dismissal, Kagan would have remanded for further proceedings. 

But wait—the Opinion of the Court also has a majority on the disposition or judgment. Without Kagan’s vote, how was that possible? 

The answer is that Justices Alito and Thomas concurred in part and concurred in the judgment. Basically, the only part of the Breyer opinion that they joined was the statement of the proper disposition below. Because they supported a far more pro-government test, Alito and Thomas didn’t join any significant part of the Breyer opinion’s reasoning. 

The result is very strange. There are five votes for certain reasoning. And there are six votes for the disposition. But those votes are only partially overlapping. As a result, there is no five-justice group that supports both the Court’s opinion and its judgment.

This weird situation raises a pretty basic question: what is an Opinion of the Court, and why is it treated as precedential? A few different answers spring to mind. 

First, the Opinion of the Court could be whatever published text gets five joins. The fact of judicial endorsement, even in the absence of any deeper agreement, might be enough to create precedent. So whatever is marked as the “Opinion of the Court” just is. The main virtue of this approach is its clarity: it lets lawyers know right away what’s precedential and also gives the justices a straightforward way to offer whatever guidance they desire. 

Second, the Opinion of the Court might have to be the reasoning behind a particular, authoritative judicial action—a judgment. The Court, after all, isn’t a legislature and, traditionally, its legitimacy springs from the resolution of a party-based dispute. So a link to the judgment could be critical to explaining why the Court’s “Opinion” is legally relevant. On this view, there isn’t actually a precedential majority opinion in Zubaydah.

Third, maybe the Opinion of the Court represents the practically consequential, reasoned agreement of most justices. Several pragmatic reasons support this sort of approach. For instance, majority agreement as to actual case outcomes might tend to be especially accurate, wise, and/or predictive of future judicial behavior. By comparison, reasoning divorced from any outcome may be unreliably carefree, and an outcome supported only by conflicted reasoning may seem incoherent. On this last approach, any precedent in Zubaydah would be diminished, if not negated, by Kagan’s inability to agree on what comes next. 

In one sense, these theoretically inflected options are academic. But, in another sense, they’re acutely practical: when called upon to apply Zubaydah, will lower courts, and the Court itself, eventually choose among these options, or even consider them?

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