When a federal appellate court decided last year that two reporters must either reveal their confidential sources to a grand jury or face jail time, the court did not hesitate in relying on the majority opinion in the Supreme Court's sole comment on the reporter's privilege--Branzburg v. Hayes. "The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter," Judge Sentelle wrote for the three-judge panel on the Circuit Court of Appeals for the District of Columbia. By this declaration, the court dismissed with a wave of its judicial hand the arguments made by the reporters and media amici that the court should follow the more lenient concurring opinion of the fifth justice in Branzburg, Justice Powell, rather than the restrictive opinion of the Court authored by Justice White. The reporters had contended that while Justice White's opinion rejected any constitutional privilege in this situation, Justice Powell's concurrence advocated a case-by-case balancing approach and thus left an opening for a constitutionally based privilege. Because it provided the crucial fifth vote in the case and was the "least common denominator" between the views of the majority and the dissenters, Justice Powell's opinion should control, the reporters had submitted. The reporter's argument was certainly not a new one; numerous courts and commentators had interpreted Branzburg in the same manner. The Third, Fourth, Fifth, and Ninth Circuit Courts of Appeals all have pronounced Justice White's opinion to be a mere "plurality." And Justice Stewart, the chief dissenter in Branzburg, later declared that the case was decided by "a vote of four a half to four and a half." Some courts and commentators, moreover, have concluded that Branzburg was a five to four victory for the press, with Justice Powell's concurrence plus the four dissenters actually creating a qualified reporter's privilege--the exact holding Justice White's opinion rejected. As Professor Rodney Smolla surmissed, "[t]he important point of the story [was] that a short concurring opinion by a Justice who actually joined the opinion of the Court in Branzburg in effect superseded the majority opinion and became the prevailing law of the land." The D.C. Circuit, however, would have none of it. Writing with an air of perplexity in response to the reporters' argument, the panel easily dismissed Justice Powell's concurrence as mere surplusage: "Justice White's opinion is not a plurality opinion of four justices joined by a separate Justice Powell to create a majority, it is an opinion of the majority of the Court. As such it is authoritative precedent. It says what it says. It rejects the privilege asserted by appellants.... In any event, whatever Justice Powell specifically intended, he joined the majority." Scanning the D.C. Circuit's decision on my way to teach Branzburg to my Media Law Seminar, I was surprised by the panel's surety that White's opinion should be treated as a true majority. What exactly made the D.C. Circuit so confident of Justice Powell's acquiescence in Justice White's reasoning, particularly when Powell's separate writing seemed to contradict it? If White's opinion were treated as a plurality, when Powell's concurrence would be the law. So why such faith that the White opinion governs?
West, Sonja R., "Concurring in Part & Concurring in the Confusion" (2006). Scholarly Works. Paper 317.