Justices Kavanaugh & Gorsuch Sparkle in Dueling “Bare Metal Defense” Opinions

By Lawrence S. EbnerMarch 25, 2019

The Supreme Court’s two newest members—Justices Brett Kavanaugh and Neil Gorsuch—are brilliant legal writers. Their first Supreme Court opinions reflected the superb drafting skills that they honed as court of appeals judges. See Kavanaugh’s Debut Opinion Vindicates Trump’s High Court Pick; Justice Gorsuch’s Exciting First Opinion.

Now Justices Kavanaugh and Gorsuch have squared off by authoring the majority and dissenting opinions in Air & Liquid Systems Corp. v. Devries, No. 17-1104 (Mar. 19, 2019). The Court rejected 6 to 3 the “bare metal defense” invoked by manufacturers of Navy ship machinery (e.g., pumps; blowers; turbines) in asbestos-related product liability suits. See Slip op. at 3, 7-8. Although the Court’s holding is confined to the maritime tort context, anyone interested in superlative legal writing should study Justice Kavanaugh’s and Justice Gorsuch’s opinions for their
organization, style, and clarity.

For example, Justice Kavanaugh’s majority opinion lucidly summarizes and critiques the parties’ advocacy positions about “how to apply [the] general tort-law ‘duty to warn’ principle when the manufacturer’s product requires later incorporation of a dangerous part in order for the integrated product to function as intended.” Id. at 5; see id. at 5-9. The majority’s holding on this issue is crystal clear: “In the maritime tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger. ” Id. at 2; 9-10 (same); 10 (same). The majority opinion repeatedly emphasizes that its holding applies only to maritime torts. See id. at 1, 2, 5, 7, 9, 10.

As Justice Scalia often demonstrated, there is a special art to writing dissenting opinions. Justice Gorsuch’s dissent in Air & Liquid Systems (in which Justices Thomas and Alito joined) embodies that art. Consider the pithy way that Justice Gorsuch begins his dissenting opinion:

“Decades ago, many of the defendants before us sold ‘bare metal’ products to the Navy. Things like the turbines used to propel its ships. Did these manufacturers have to warn users about the dangers of asbestos that someone else later chose to add to or wrap around their products as insulation?” Dissent at 1. In these three simple sentences Justice Gorsuch explains what the case is about. (Actually, the second sentence – “Things like the turbines used to propel its ships” – is not even a full sentence, but it nonetheless accomplishes its purpose.) And then, Justice Gorsuch’s lobs an imperative to the reader: “Start with a couple of things we all can agree on.” Id.

In another part of his dissent, Justice Gorsuch invites the reader to “[j]ust consider some of the uncertainties each part of the Court’s new three-part test is sure to invite.” Id. at 5. After positing a series of difficult questions and hypotheticals, Justice Gorsuch offers the following memorable statement: “Headscratchers like these are sure to enrich lawyers and entertain law students, but they also promise to leave everyone else wondering about their legal duties, rights, and liabilities.” Id. at 7.

Finally, Justice Gorsuch rejoices that “there is a silver lining here . . . the Court expressly states that it does ‘not purport to define the proper tort rule outside of the maritime context.'” Id. at 8. Concluding with a judicial zinger, he notes that “[i]n other tort cases, courts remain free to use the more sensible and historically proven common law rule. . . . that is a liberty they may be wise to exercise.” Id.

Dissenting opinions too often are overlooked. Justice Gorsuch’s dissenting opinion in Air & Liquid Systems is a must-read along with Justice Kavanaugh’s majority opinion.


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