The 8-member majority split 2-3-3.
This morning before the Court, Justice Kagan delivered the ruling in Hunter v. United States. On first hearing, I assumed the Court had reached a unified stance on a criminal-procedure question. Yet after the announcement, it became clear that Justices Gorsuch, Kavanaugh, and Barrett had written separately. My initial reaction was that they simply had too much time on their hands and should be granting more petitions. But as I worked through the opinion, I saw how this case embodies the costs that come with near-unanimity.
Among the eight-member majority, only Justice Kagan and Chief Justice Roberts did not author separate opinions. The court split into two camps of three—and not the usual alignments. Justice Gorsuch authored a concurrence joined by Justices Sotomayor and Jackson, constituting a direct assault on plea bargaining in general, and on appeal waivers in particular. Justice Kavanaugh wrote a concurrence joined by Justices Alito and Barrett, arguing that Gorsuch had set a “low bar” for waivers that “may not be entirely consistent with the Court’s opinion.”
For her part, Justice Kagan did not refer to any of the three concurrences. She clung to the majority position with determination. Hats off to her for keeping that line. I suspect the Chief Justice was grateful to have the author contributing to the case. I wonder whether the Chief would have preferred crafting a more government-friendly opinion with Justices Alito, Kavanaugh, and Barrett, with Kagan aboard, while Sotomayor and Jackson would have dissented. Yet perhaps Justice Kagan would not have accepted such a result, making this quasi-broad coalition the best possible outcome.
I anticipate returning to this case with more to say, especially regarding the split between Justice Barrett and Justice Thomas.
