Dissenting Opinions At U.S. Supreme Court (Coinbase v. Bielski & Waleski v. Montgomery)

By: Donald L Swanson

Dissenting opinions are always interesting.  Sometimes, they are even the most interesting part of the entire case.

Two recent dissents, in opinions of the U.S. Supreme Court, are decided three days apart: on June 23 & 26 of 2023, respectively.

The first opinion has a four-Justices dissent by an interesting combination of Jackson, Sotomayor, Kagan and Thomas.

The second opinion is interesting in that there is only a dissent—there is no majority opinion.

Here’s a summary of each.

First Case

In Coinbase, Inc. v. Bielski,[fn. 1] the U.S. Supreme Court’s majority identifies the question presented and its answer like this.

Setup: “When a federal district court denies a motion to compel arbitration, the losing party has a statutory right to an interlocutory appeal.”

Question: “The sole question here is whether the district court must stay its pre-trial and trial proceedings while the interlocutory appeal is ongoing.”

Answer: “The answer is yes: The district court must stay its proceedings.”

Rationale:  The majority identifies these points of rationale to support its answer:

1. “courts of appeals possess robust tools to prevent unwarranted delay and deter frivolous interlocutory appeals”; and
2. The following Bielski arguments are “wrong” or “incorrect”:
   • statutory construction and prior Supreme Court precedents require a contrary result;
   • the majority’s ruling will “create a special, arbitration-preferring” rule; and
   • “the ordinary discretionary stay factors . . . adequately protect parties’ rights.”

Dissent:  The four dissenting Justices (Jackson, Sotomayor, Kagan and Thomas) agree on the following points:

1. “Unable to locate its rule in a statute, the majority opinion pivots to ‘background principles.’ . . . But there is no background mandatory-general-stay rule. To the contrary, the background rule is that courts have case-by-case discretion regarding whether or not to issue a stay.”
2. “Because neither the statute nor any background law states that an interlocutory appeal over arbitrability triggers a mandatory general stay of trial court proceedings, the majority opinion resorts to spinning such a rule from a single sentence in Griggs v. Provident . . . But Griggs expresses a far narrower principle, and is thus insufficient to support the majority’s mandatory-general-stay rule.”
3. “To justify its new mandatory-general-stay rule, the majority ultimately rests on its assessment of what is ‘sensible.’ . . . But even the majority’s policy concerns do not support its rule.”

Second Case

In Waleski v. Montgomery, McCracken, Walker & Rhodes, LLP, [fn. 2] there is no majority opinion—there is only a dissent.

That’s because the majority of Justices agree with a “Petition DENIED” result, while three Justices (Thomas, Gorsuch and Barrett) dissent from that denial in a written opinion.

The Circuit Court below exercises “hypothetical jurisdiction”—that’s where an appellate court proceeds immediately to address a merits question, despite jurisdictional objections.

The question presented to the Supreme Court in Waleski is whether “the doctrine of hypothetical jurisdiction” is valid. 

The dissenting Justices want to “grant the petition for certiorari,” insisting that hypothetical jurisdiction “carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers.”

Here is a summary of their rationale:

1. “In Steel Co. v. Citizens for Better Environment . . . this Court categorically repudiated ‘the doctrine of hypothetical jurisdiction’”;
2. yet, several Courts of Appeals have revived the concept of hypothetical jurisdiction when “a question of statutory (non-Article III) jurisdiction is complex and the claim fails on other more obvious grounds,” an appellate court may assume hypothetical jurisdiction “to dismiss on those obvious grounds”;
3. “continued use of hypothetical jurisdiction is the subject of a longstanding split of authority” and “raises serious concerns”;
4. the distinction between “statutory jurisdiction” and “Article III” jurisdiction is untenable because federal court jurisdiction is limited both by (i) Article III, and (ii) powers vested by Congress;
5. questions of statutory jurisdiction implicate the separation-of-powers considerations;
6. it is “exceedingly difficult to reconcile hypothetical statutory jurisdiction with the text and structure of Article III and this Court’s decision in Steel Co.”;
7. some cases might “cry out for decision on the merits” and it may be “convenient” sometimes to assume away difficult jurisdictional questions to decide a case on easier merits grounds, yet courts have a “threshold duty to examine their own jurisdiction” in such cases’; and
8. for a court “to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires.”

Conclusion

Dissents are always interesting.

The two opinions summarized above are excellent examples.

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Footnote 1.  Coinbase, Inc. v. Bielski is Case No. 22-105 at the U.S. Supreme Court, decided June 23, 2023.  It’s Supreme Court Docket is linked here.

Footnote 2.  The Walesk v. Montgomery, McCracken, Walker & Rhodes, LLP, is Case No. 22-914 at the U.S. Supreme Court, decided June 26, 2023.  It’s Supreme Court Docket is linked here.

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