Justice Redux: The Impact of the Same Justice Writing on the Same Issue Years Later
posted by Paul Secunda
Today, a very important ERISA remedies case was handed down by the Supreme Court in LaRue v. DeWolff, Boberg, and Assocs. The Court held, “that although §502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, that provision does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant’s individual account.” Or in other words, an employee 401(k) account holder can now sue their employer/plan administrator for breaches of fiduciary duty which cause a loss to their account.
NOW WAIT! Before you stop reading, I promise this post is not about ERISA (God Forbid).
Instead, I want to get readers’ insights on a point I made today in my post on Workplace Prof (there is no such thing as blogging too much, you Doubting Thomases) entitled: “Reflections on LaRue”:
Justice Stevens was the perfect person to write the majority opinion (joined by Souter, Breyer, Ginsburg, and Alito) because twenty-three years earlier he wrote the decision in the Russell case, which found that consequential damages were not permitted under a Section 502(a)(2) breach of fiduciary duty claim. His understanding that Russell applied to the the meaning of a plan loss in the defined benefit plan context as opposed to the defined contribution plan (401(k)) context of this case, carries considerable weight in trying to decide the relationship between LaRue and Russell. In fact, and this is rank speculation on my part, I wonder if Alito joined the progressives because he was particularly swayed by the meaning of that case given to it by its original author.
Now, I understand that most of you do not understand the underlying ERISA-speak going on in that passage. Fair enough. But what about the thought that an otherwise reluctant Justice (in my example, Alito) will join an opinion because he is particularly swayed that a previous precedent does not apply because the same Justice (in this case, Stevens) wrote on the issue today and many years ago (in this case, 23 years ago) and says the cases are distinguishable?
I can think of similar situations in other areas of labor and employment law (including in the federal employment Bivens context in Bush v. Lucas with Justice Brennan’s views on that issue). Does this phenomenon exist in other areas of the law? Examples or counter-examples (or as my colleague, Chris Green, talked about during his philosophy lecture yesterday on “Epistemic Parity of Testimony and Perception,” dis-analogies)?
And to your understanding, does the twice-writing Justice gain additional authority for his or her views on the opinion because he or she has written persuasively on the opinion before? I also might point out that in LaRue, Alito might have been willing to follow Stevens because Stevens was joined by Rehnquist, Burger, O’Connor, and Powell in his previous opinion in Russell.
What say you fellow law professors with way too much time on your hands?
February 20, 2008 at 3:58 pm
Posted in: Employment Law
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Responses (3)
Michael Froomkin - February 20, 2008 at 6:42 pm
A famous counter-example: Scalia complaining about what Stevens said his own Chevron decision meant in scalia’s concurrence in Immigration and Naturalization Service v Cardozo-Fonseca, 480 US 421, 452-53 (1987) (“unjustifiable, however, is the Court’s use of this superfluous discussion as the occasion to express controversial, and I believe erroneous, views on the meaning of this Court’s decision in Chevron”).
Mike O'Shea - February 20, 2008 at 10:47 pm
Right, this post’s not about ERISA; it’s about textualism vs. intentionalism in interpreting judicial opinions rather than statutes.
Few expected Justice Alito to be a strict textualist when it came to statutory interpretation, and so far he hasn’t been. (See, e.g., Zuni last Term.) It’s plausible to think that a Justice would bring a similar attitude to both kinds of written public law, legislative and decisional.
Conversely, you’d expect the formalist Scalia to think the identity of an opinion’s author shouldn’t usually affect its interpretation. “The decision” is the outcome plus the original public meaning of the opinion’s text. (Subject to the familiar distinction between dictum and ratio decidendi.)
Chris - February 20, 2008 at 11:51 pm
The fact that judicial opinions have multiple authors puts a premium on text, as I see it. If it’s not in the opinion, then it didn’t get 5 votes. When we have multiple-member bodies saying things, the distinction between textualism and intentionalism collapses, I think, because what the body “intends” is limited to what’s expressed in the text the members adopt. Same goes for statutes and constitutional provisions.
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