This past Tuesday, the United States Court of Appeals for the D.C. Circuit—in arguably its most significant opinion of the year—held that the Consumer Financial Protection Bureau (CFPB)’s structure is unconstitutional. In an opinion by Judge Brett Kavanaugh, the court held that the CFPB’s status as an independent agency headed by a single director who is removable only for cause violated Article II of the Constitution. Christian Corrigan previously blogged on this case and explained how Judge Kavanaugh’s opinion protects individual liberty.
Beyond the legal arguments, Judge Kavanaugh’s opinion is interesting because of its reliance on Justice Antonin Scalia’s dissent in Morrison v. Olson. In Morrison, the Court upheld the constitutionality of the Independent Counsel Act, which allows a special court to appoint an independent counsel to investigate government officials’ impropriety.
Justice Scalia was the lone dissenter in Morrison. He raised concerns about how the independent counsel’s role undermines separation of powers principles. According to Justice Scalia, the Independent Counsel Act provided the independent counsel prosecutorial powers, thus depriving the President exclusive control of the executive power. By allowing prosecutorial powers to remain in a non-executive branch, the Court undermined separation of powers principles. Justice Scalia also famously noted that although issues raising separation of powers issues are normally clad in sheep’s clothing, “this wolf comes as a wolf.”
In the three-decades since Morrison was decided, Justice Scalia’s dissent has been regarded as one of his best opinions. Indeed, Justice Kagan has remarked that Justice Scalia’s Morrison lone dissent is “one of the greatest dissents every written and every year it gets better.” Judge Kavanaugh appears to have used Justice Scalia’s dissent as a launching point to highlight the danger that CFPB’s single director structure poses to individual liberty and separation of powers principles.
The impact of Justice Scalia’s dissent should serve as a lesson for current and future jurists: do not be afraid to go it alone. As long as judges provides well-reasoned and thoughtful analysis, they should not be afraid to stray from the consensus and write lone opinions.
In fact, lone opinions often supplant majority opinions. Take Justice John Marshall Harlan’s lone dissent in Plessy v. Ferguson, Justice Louis Brandeis’s solo concurrence in Whitney v. California, and Justice Harlan Stone’s un-joined dissent in Minersville School District v. Gobitis. Although these justices stuck out their necks, their opinions have been vindicated. The Court’s jurisprudence more closely reflects Justice Harlan’s position on “separate but equal,” Justice Brandeis’s view on the First Amendment, and Justice Stone’s opinion on compelled speech. In short, time has shown that Justices Harlan, Brandeis, and Stone were right.
It is plainly difficult to identify what contemporary lone opinion will stand the test of time. Perhaps law students will be reading Justice Thomas’s concurrence in McDonald v. City of Chicago, in which he argued for the revival of the Privileges or Immunities Clause, a century from now. Maybe other jurists will heed Judge Neil Gorsuch’s call to reexamine Chevron deference. Or it could be that Justice Sotomayor’s recent solo dissents will change the landscape of Fourth Amendment jurisprudence. But by providing thoughtful opinions, judges facilitate discussion and debate that will hopefully lead to sounder decisions in the future.
Despite not having any support in Morrison, Justice Scalia appears to be right. His opinion provided part of the intellectual basis to strike down the constitutionally suspect structure of the CFPB. If jurists wish to have a similar impact in the future, they must be willing to go it alone.