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This morning in the Court I heard Justice Kagan hand down Hunter v. United States. As she announced it, I thought the Court reached a consensus ruling on a criminal procedure issue. But at the end, she said that Justices Gorsuch, Kavanaugh, and Barrett wrote separately. My immediate thought was “they have too much time on their hands and need to grant more petitions.” But as I read through the decision, I realized how this case reflects the cost of near-unanimity.
Of the eight member majority, only Justice Kagan and Chief Justice Roberts did not write separately. There were two camps of three–and not the usual ones. Justice Gorsuch wrote a concurrence joined by Justices Sotomayor and Jackson, which was a frontal assault on plea bargaining in general, and appeal waivers in particular. Justice Kavanaugh wrote a concurrence joined by Justices Alito and Barrett, charging that Gorsuch set a “low bar” for plea waivers that “may not be entirely consistent with the Court’s opinion.”
Justice Kagan, for her part, made no reference to any of the three concurrences. She was holding onto the majority for dear life. Kudos to her for threading that needle. I’m sure the Chief Justice was thankful she had the author pen in this case. I wonder whether the Chief would have been better off writing a more pro-government opinion with Justices Alito, Kavanaugh, and Barrett, with Kagan in tow, allowing Sotomayor and Jackson to drop off. But perhaps Justice Kagan would not have gone along with that outcome, so this quasi-broad coalition was the best that can be done.
I will have much more to say about this case, especially the split between Justice Barrett and Thomas.
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