Media Mention

Jonathan H. Adler: An Unusual 5-4 Supreme Court Split

April 27, 2020

Note: this piece was originally published on Reason, and was written by Checks & Balances member Jonathan H. Adler. 

The Supreme Court issued three opinions in argued cases today, punting (correctly) in one of the biggest cases of the term.

The most interesting decision came in Georgia v. Public.Resource.org, in which the Court rejected the state of Georgia’s attempt to assert copyright in the Official Code of Georgia Annotated. I’ll leave to others whether the opinion properly concluded that the Georgia Code Revision Commission is, in fact, an arm of the state legislature, and whether the majority correctly applied the relevant conceptions of authorship to this dispute. What I find most interesting is the line-up in this 5-4 decision.

Chief Justice Roberts wrote the majority, joined by the Court’s four most junior justices: Sotomayor, Kagan, Gorsuch and Kavanaugh. Justice Thomas dissented, joined by Justice Alito and (in part) Justice Breyer. Justice Ginsburg dissented separately, also joined by Breyer. This is a 5-4 split one does not see every day. Indeed, I cannot think of another case dividing the Court in this way (even if one were to substitute Kennedy for Kavanaugh and/or Scalia for Gorsuch). Just another reminder that not all 5-4 cases can be understood in political or ideological terms.

 

Continue reading at Reason.

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