Update (1 p.m.): On further consideration, and with the benefit of the insights of a reader, I think that I overstated things in my original post. It would have been better if Kagan had stated explicitly that, having disagreed with the majority on the question on which certiorari was granted, she would not disturb, and would thus affirm, the Sixth Circuit’s judgment. But I think that I was wrong to contend that Kagan had to revisit whether the Sixth Circuit properly applied Brecht. Rather than deleting my post entirely, I am striking through the flawed passages.

In its ruling today in Brown v. Davenport, the Supreme Court divided 6 to 3 on an arcane (but, I gather, important) issue of federal habeas law:

After a state court determines that an error at trial did not prejudice a criminal defendant, may a federal court grant habeas relief based solely on its independent assessment of the error’s prejudicial effect under Brecht v. Abrahamson, 507 U. S. 619 (1993)? Or must a federal court also evaluate the state court’s decision under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)?

Justice Gorsuch’s majority opinion answers “no” to the first question and “yes” to the second. Justice Kagan’s opinion, which is denominated a dissent, says “yes” to the first and “no” to the second.

The competing opinions will provide lots of fodder for habeas scholars. But I will instead confine my inquiry here to a technical question: Is it correct for Kagan to label her opinion a dissent? I think not.

No matter how vigorously a separate opinion disagrees with a majority opinion, it qualifies as a dissent (rather than a concurrence in the judgment) only if it disagrees with the majority opinion as to the judgment: in this case, whether to affirm or reverse (or vacate and remand) the Sixth Circuit’s judgment granting habeas relief.

Gorsuch’s majority opinion explicitly reverses the Sixth Circuit’s judgment. But unless I’m missing it (and perhaps I am), I don’t see where Kagan actually states that she would affirm the Sixth Circuit’s judgment.

In other words, even if Kagan believes that the Sixth Circuit majority was right to look only to Brecht, she would have to say that the Sixth Circuit properly applied Brecht in order to affirm the Sixth Circuit’s grant of habeas relief. But I don’t see where she does so. On the contrary, while she finds it useful to argue that Gorsuch’s opinion shows that the Court itself would reverse the Sixth Circuit on the basis of Brecht alone, I don’t see that she indicates that she would disagree with such a ruling. And given the fact that the Sixth Circuit’s application of Brecht would appear to be subject to de novo review, she can’t just implicitly defer to that application.

Kagan states in the introduction to her opinion that she “respectfully dissent[s] from [the Court’s] pointless demand” that courts “jump through AEDPA’s hoops as well” as satisfy Brecht. But that odd locution is clearly not a dissent from the Court’s actual judgment.

In short, for all the work that Kagan has done to express her disagreement with the majority on the legal question the case presents, I think that she stopped short of the additional work needed to determine whether her opinion should be a concurrence in the judgment or a dissent.