Judge Ho’s Excellent Opinion on Title VII, Sexual Orientation, and Gender Identity—Part 2

Judge Ho’s excellent account of the proper meaning of Title VII came in his separate opinion concurring in his own unanimous panel opinion in Wittmer v. Phillips 66 Co. In that panel opinion, Judge Ho ruled that, on an employee’s claim of discrimination on the basis of transgender status, the district court had correctly granted summary judgment for the employer (on the ground that the employee had failed to present sufficient evidence of discrimination to get the matter to a jury). On the district court’s threshold assumption that Title VII prohibits discrimination on the basis of transgender status, Judge Ho faulted the district court for ignoring binding Fifth Circuit precedent from 1979 that held that Title VII does not bar discrimination on the basis of sexual orientation.

Judge Ho’s determination for the panel that the district court’s grant of summary judgment should be affirmed means, of course, that the analysis in his concurring opinion about the proper meaning of Title VII was not necessary to the disposition of the case. Ho has already received some criticism for penning that concurring opinion, so I figured that I would briefly address the thorny question of whether and when it is proper for a judge (or justice) to opine on matters that are not necessary to the decision of a case.

I don’t think that this is an easy question to answer, and I have only some tentative thoughts to offer:

1. A test of necessity is unattractive. If, for example, a district judge determines that a party should lose for four separate reasons, it is unnecessary to address three of the reasons. But addressing all four together tees things up for the appellate court to resolve the whole matter.

2. Writing beyond what is necessary is routine. Indeed, the quality of unnecessariness would seem to inhere in every properly denominated concurring opinion (as distinct from opinions concurring in the judgment). Any judge or justice who joins a majority opinion and chooses to write a separate concurring opinion is acknowledging that the concurring opinion is not necessary.

3. Writing beyond what is necessary often provides useful guidance. That, to take just one of countless possible examples, is presumably why Justice Kagan, joined by her three liberal colleagues, wrote a concurring opinion in Gill v. Whitford last year spelling out her view of how plaintiffs asserting a partisan gerrymandering claim could establish standing.

More generally, there are lots of tricky legal puzzles. The more that judges provide intelligent assessments of how those puzzles should be solved, the more likely it is that they will be solved correctly.

4. Writing a majority opinion that goes beyond what is necessary is, all other things being equal, more problematic than writing a concurring or dissenting opinion that does so, as dicta in a majority opinion might well be mistaken for part of the court’s holding.

5. Everyone’s reaction (yes, including my own) to a particular instance of an unnecessary opinion is likely to be shaped by one’s assessment of the substantive merits of that opinion. That’s entirely sensible, for if one of the strongest arguments in favor of such opinions is that they can provide valuable guidance, the extent to which they actually do so matters considerably.

It’s on the basis of this last point that I’m especially glad that Judge Ho wrote his concurring opinion.