Sure, but I’m not putting my name on it

In most landmark decisions, the opinion of the Court is written by the Chief Justice or most senior justice joining in the opinion. Because they are the cases that will studied for many years to come, justices want be the ones to pen the opinion and determine its language. It is through their written opinions that justices come to be revered in the study of constitutional law.

What does it say about a case when the opinion of the court is not signed, then? Called a per curium decision, the majority opinion is written without crediting a particular justice, only detailing the conclusion the court came to. It is a true ‘opinion of the court.’

This is what happened in the fundamental First Amendment case New York Times Company v. United States. The contentious decision was made per curium, followed by concurrences by all six justices in the majority. Concurrent opinions come about when justices agree with the decision of court, but disagree with the principle rationale used or decide to expand upon it.

A per curium decision could be used to avoid attaching a name to what would be a polarizing decision. It can useful in avoiding the public scrutiny of an individual justice rather than of the Court. In most cases, however, it is used in non-contentious opinions where the justices are near total agreement.

Though this case was incredibly polarizing, as those who believed so fiercely in freedom of the press and the importance of national security clashed, this was not why this decision came down anonymously.

Because of the nature of an injunction, the Court needed to act quickly to resolve whether the federal government could seek injunctions against publications who publish contents of the Pentagon Papers. Though this case was about the successful injunction against The New York Times, the federal government had also sought an injunction against The Washington Post which failed in the district court.

Publications and the federal government alike needed the court to make the call to know how to move forward. It was either an issue of national security, ergo the government could immediately act to prevent the release of any further contents of the Pentagon Papers, or it was an unconstitutional act of prior restraint that should be rectified.

In the opinion of the court, they simply wrote a brief summary of precedents they agreed with and were applying to the decision, and outlined the resulting action. It stated that the Court reversed the injunction against The New York Times and affirmed the district court decision that didn’t allow for the injunction against The Washington Post.

The majority opinion itself doesn’t speak much at all to the rationale behind the decision apart from the cited precedents. This is entirely outside the norm of what we usually see in an opinion. Instead, the rationales all appear in each justices’ concurrences. Though they agreed on siding with the publications, they diverged on the reason they believed it was the right decision.

It’s evident that they didn’t have the time necessary to discuss it enough to reach a cohesive rationale for most of the justices. As Garrett Epps explains:

The Court reached its decision in only days, while the eyes of the world were fixed on Washington to discover whether the guarantee of free press even included the right to publish information in wartime that the government insisted was crucial to “national security.”

Not only did every justice in the majority write or join in a concurrence, so did the remaining three justice write or join in dissents. This is one of those cases, that because of its time constraints, we can see the justices as individuals more than we normally could. If timing wasn’t of the essence, the opinions would not be nearly as fragmented.


2 thoughts on “Sure, but I’m not putting my name on it

Add yours

  1. As someone who is still struggling in this class to understand the intricacies of our judicial system, I really appreciate your expertise and in-depth knowledge of the subject. I’m not sure if I am qualified to give an opinion, but I will say that I agree with Ron Swanson on this one: “If you believe in something, you sign your name to it.”

    Thanks for this look into the nitty gritty – you know your stuff!

    Liked by 1 person

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