Anderson v. Liberty Lobby, Inc./Dissent Brennan

, dissenting.

The Court today holds that “whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case,” ante, at 255. The Court’s holding today is not, of course, confined in its application to First Amendment cases. Although this case arises in the context of litigation involving libel and the press, the Court’s holding is that “in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.” Ante, at 254. Accordingly, I simply do not understand why, dissenting, feels it appropriate to cite Calder v. Jones, 465 U. S. 783 (1984), and to remind the Court that we have consistently refused to extend special procedural protections to defendants in libel and defamation suits. The Court today does nothing of the kind. It changes summary judgment procedure for all litigants, regardless of the substantive nature of the underlying litigation.

Moreover, the Court’s holding is not limited to those cases in which the evidentiary standard is “heightened,” i. e., those in which a plaintiff must prove his case by more than a mere preponderance of the evidence. Presumably, if a district court ruling on a motion for summary judgment in a libel case is to consider the “quantum and quality” of proof necessary to support liability under New York Times, ante, at 254, and then ask whether the evidence presented is of “sufficient caliber or quantity” to support that quantum and quality, the court must ask the same questions in a garden-variety action where the plaintiff need prevail only by a mere preponderance of the evidence. In other words, today’s decision by its terms applies to all summary judgment motions, irrespective of the burden of proof required and the subject matter of the suit In my view, the Court’s analysis is deeply flawed, and rests on a shaky foundation of unconnected and unsupported observations, assertions, and conclusions. Moreover, I am unable to divine from the Court’s opinion how these evidentiary standards are to be considered, or what a trial judge is actually supposed to do in ruling on a motion for summary judgment. Accordingly, I respectfully dissent.

To support its holding that in ruling on a motion for summary judgment a trial court must consider substantive evidentiary burdens, the Court appropriately begins with the language of Rule 56(c), which states that summary judgment shall be granted if it appears that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The Court then purports to restate this Rule, and asserts that “summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Ante, at 248. No direct authority is cited for the proposition that in order to determine whether a dispute is “genuine” for Rule 56 purposes a judge must ask if a “reasonable” jury could find for the nonmoving party. Instead, the Court quotes from First National Bank of Arizona v. Cities Service Co., 391 U. S. 253, 288–289 (1968), to the effect that a summary judgment motion will be defeated if “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial,” ante, at 249, and that a plaintiff may not, in defending against a motion for summary judgment, rest on mere allegations or denials of his pleadings. After citing Adickes v. S. H. Kress & Co., 398 U. S. 144 (1970), for the unstartling proposition that “the availability of summary judgment turn[s] on whether a proper jury question [is] presented,” ante, at 249, the Court then reasserts, again with no direct authority, that in determining whether a jury question is presented, the inquiry is whether there are factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Ante, at 250. The Court maintains that this summary judgment inquiry “mirrors” that which applies in the context of a motion for directed verdict under Federal Rule of Civil Procedure 50(a): “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Ante, at 251–252. Having thus decided that a “genuine” dispute is one which is not “one-sided,” and one which could “reasonably” be resolved by a “fair-minded” jury in favor of either party, ibid., the Court then concludes: "“Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: It makes no sense to say that a jury could reasonably find for either party without some benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable evidentiary standards.” Ante, at 254–255."

As far as I can discern, this conclusion, which is at the heart of the case, has been reached without the benefit of any support in the case law. Although, as noted above, the Court cites Adickes and Cities Service, those cases simply do not stand for the proposition that in ruling on a summary judgment motion, the trial court is to inquire into the “one-sidedness” of the evidence presented by the parties. Cities Service involved the propriety of a grant of summary judgment in favor of a defendant alleged to have conspired to violate the antitrust laws. The issue in the case was whether, on the basis of the facts in the record, a jury could infer that the defendant had entered into a conspiracy to boycott. No direct evidence of the conspiracy was produced. In agreeing with the lower courts that the circumstantial evidence presented by the plaintiff was insufficient to take the case to the jury, we observed that there was “one fact” that petitioner had produced to support the existence of the illegal agreement, and that that single fact could not support petitioner’s theory of liability. Critically, we observed that “[t]he case at hand presents peculiar difficulties because the issue of fact crucial to petitioner’s case is also an issue of law, namely the existence of a conspiracy.” 391 U. S., at 289. In other words, Cities Service is at heart about whether certain facts can support inferences that are, as a matter of antitrust law, sufficient to support a particular theory of liability under the Sherman Act. Just this Term, in discussing summary judgment in the context of suits brought under the antitrust laws, we characterized both Cities Service and Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752 (1984), as cases in which “antitrust law limit[ed] the range of permissible inferences from ambiguous evidence….” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 588 (1986) (emphasis added). Cities Service thus provides no authority for the conclusion that Rule 56 requires a trial court to consider whether direct evidence produced by the parties is “one-sided.” To the contrary, in Matsushita, the most recent case to cite and discuss Cities Service, we stated that the requirement that a dispute be “genuine” means simply that there must be more than “some metaphysical doubt as to the material facts.” 475 U. S., at 586. Writing in dissent in Matsushita, stated that he agreed with the summary judgment test employed by the Court, namely, that “ ‘[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.’ ” 475 U. S., at 599. Whether the shift, announced today, from looking to a “reasonable” rather than a “rational” jury is intended to be of any significance, there are other aspects of the Matsushita dissent which I find difficult to square with the Court’s holding in the present case. The Matsushita dissenters argued: "“… [T]he Court summarizes Monsanto Co. v. Spray-Rite Service Corp., supra, as holding that ‘courts should not permit factfinders to infer conspiracies when such inferences are implausible….’ Ante, at 593. Such language suggests that a judge hearing a defendant’s motion for summary judgment in an antitrust case should go beyond the traditional summary judgment inquiry and decide for himself whether the weight of the evidence favors the plaintiff. Cities Service and Monsanto do not stand for any such proposition. Each of those cases simply held that a particular piece of evidence standing alone was insufficiently probative to justify sending a case to the jury. These holdings in no way undermine the doctrine that all evidence must be construed in the light most favorable to the party opposing summary judgment.

“If the Court intends to give every judge hearing a motion for summary judgment in an antitrust case the job of determining if the evidence makes the inference of conspiracy more probable than not, it is overturning settled law. If the Court does not intend such a pronouncement, it should refrain from using unnecessarily broad and confusing language.” Id., at 600–601 (footnote omitted)."

In my view, these words are as applicable and relevant to the Court’s opinion today as they were to the opinion of the Court in Matsushita.

Nor does Adickes, also relied on by the Court, suggest in any way that the appropriate summary judgment inquiry is whether the evidence overwhelmingly supports one party. Adickes, like Cities Service, presented the question of whether a grant of summary judgment in favor of a defendant on a conspiracy count was appropriate. The plaintiff, a white schoolteacher, maintained that employees of defendant Kress conspired with the police to deny her rights protected by the Fourteenth Amendment by refusing to serve her in one of its lunchrooms simply because she was white and accompanied by a number of black schoolchildren. She maintained, among other things, that Kress arranged with the police to have her arrested for vagrancy when she left the defendant’s premises. In support of its motion for summary judgment, Kress submitted statements from a deposition of one of its employees asserting that he had not communicated or agreed with the police to deny plaintiff service or to have her arrested, and explaining that the store had taken the challenged action not because of the race of the plaintiff, but because it was fearful of the reaction of some of its customers if it served a racially mixed group. Kress also submitted affidavits from the Chief of Police and the arresting officers denying that the store manager had requested that petitioner be arrested, and noted that in the plaintiff’s own deposition, she conceded that she had no knowledge of any communication between the police and any Kress employee and was relying on circumstantial evidence to support her allegations. In opposing defendant’s motion for summary judgment, plaintiff stated that defendant in its moving papers failed to dispute an allegation in the complaint, a statement at her deposition, and an unsworn statement by a Kress employee all to the effect that there was a policeman in the store at the time of the refusal to serve, and that it was this policeman who subsequently made the arrest. Plaintiff argued that this sequence of events “created a substantial enough possibility of a conspiracy to allow her to proceed to trial….” 398 U. S., at 157.

We agreed, and therefore reversed the lower courts, reasoning that Kress “did not carry its burden because of its failure to foreclose the possibility that there was a policeman in the Kress store while petitioner was awaiting service, and that this policeman reached an understanding with some Kress employee that petitioner not be served.” Ibid. Despite the fact that none of the materials relied on by plaintiff met the requirements of Rule 56(e), we stated nonetheless that Kress failed to meet its initial burden of showing that there was no genuine dispute of a material fact. Specifically, we held that because Kress failed to negate plaintiff’s materials suggesting that a policeman was in fact in the store at the time of the refusal to serve, “it would be open to a jury … to infer from the circumstances that the policeman and a Kress employee had a ‘meeting of the minds’ and thus reached an understanding that petitioner should be refused service.” Id., at 158.

In Adickes we held that a jury might permissibly infer a conspiracy from the mere presence of a policeman in a restaurant. We never reached and did not consider whether the evidence was “one-sided,” and had we done so, we clearly would have had to affirm, rather than reverse, the lower courts, since in that case there was no admissible evidence submitted by petitioner, and a significant amount of evidence presented by the defendant tending to rebut the existence of a conspiracy. The question we did reach was simply whether, as a matter of conspiracy law, a jury would be entitled, again, as a matter of law, to infer from the presence of a policeman in a restaurant the making of an agreement between that policeman and an employee. Because we held that a jury was entitled so to infer, and because the defendant had not carried its initial burden of production of demonstrating that there was no evidence that there was not a policeman in the lunchroom, we concluded that summary judgment was inappropriate.

Accordingly, it is surprising to find the case cited by the majority for the proposition that “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Ante, at 249. There was, of course, no admissible evidence in Adickes favoring the nonmoving plaintiff; there was only an unrebutted assertion that a Kress employee and a policeman were in the same room at the time of the alleged constitutional violation. Like Cities Service, Adickes suggests that on a defendant’s motion for summary judgment, a trial court must consider whether, as a matter of the substantive law of the plaintiff’s cause of action, a jury will be permitted to draw inferences supporting the plaintiff’s legal theory. In Cities Service we found, in effect, that the plaintiff had failed to make out a prima facie case; in Adickes we held that the moving defendant had failed to rebut the plaintiff’s prima facie case. In neither case is there any intimation that a trial court should inquire whether plaintiff’s evidence is “significantly probative,” as opposed to “merely colorable,” or, again, “one-sided.” Nor is there in either case any suggestion that once a nonmoving plaintiff has made out a prima facie case based on evidence satisfying Rule 56(e) that there is any showing that a defendant can make to prevail on a motion for summary judgment. Yet this is what the Court appears to hold, relying, in part, on these two cases.

As explained above, and as explained also by in his dissent, see post, at 271, I cannot agree that the authority cited by the Court supports its position. In my view, the Court’s result is the product of an exercise akin to the child’s game of “telephone,” in which a message is repeated from one person to another and then another; after some time, the message bears little resemblance to what was originally spoken. In the present case, the Court purports to restate the summary judgment test, but with each repetition, the original understanding is increasingly distorted.

But my concern is not only that the Court’s decision is unsupported; after all, unsupported views may nonetheless be supportable. I am more troubled by the fact that the Court’s opinion sends conflicting signals to trial courts and reviewing courts which must deal with summary judgment motions on a day-to-day basis. This case is about a trial court’s responsibility when considering a motion for summary judgment, but in my view, the Court, while instructing the trial judge to “consider” heightened evidentiary standards, fails to explain what that means. In other words, how does a judge assess how one-sided evidence is, or what a “fair-minded” jury could “reasonably” decide? The Court provides conflicting clues to these mysteries, which I fear can lead only to increased confusion in the district and appellate courts.

The Court’s opinion is replete with boilerplate language to the effect that trial courts are not to weigh evidence when deciding summary judgment motions:

"“[I]t is clear enough from our recent cases that at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter….” Ante, at 249.

“Our holding … does not denigrate the role of the jury. … Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Ante, at 255."

But the Court’s opinion is also full of language which could surely be understood as an invitation—if not an instruction—to trial courts to assess and weigh evidence much as a juror would:

"“When determining if a genuine factual issue … exists …, a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability. … For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence.” Ante, at 254 (emphasis added).

“[T]he inquiry … [is] whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Ante, at 251–252 (emphasis added).

“[T]he judge must ask himself … whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Ante, at 252."

I simply cannot square the direction that the judge “is not himself to weigh the evidence” with the direction that the judge also bear in mind the “quantum” of proof required and consider whether the evidence is of sufficient “caliber or quantity” to meet that “quantum.” I would have thought that a determination of the “caliber and quantity,” i. e., the importance and value, of the evidence in light of the “quantum,” i. e., amount “required,” could only be performed by weighing the evidence.

If in fact, this is what the Court would, under today’s decision, require of district courts, then I am fearful that this new rule—for this surely would be a brand new procedure—will transform what is meant to provide an expedited “summary” procedure into a full-blown paper trial on the merits. It is hard for me to imagine that a responsible counsel, aware that the judge will be assessing the “quantum” of the evidence he is presenting, will risk either moving for or responding to a summary judgment motion without coming forth with all of the evidence he can muster in support of his client’s case. Moreover, if the judge on motion for summary judgment really is to weigh the evidence, then in my view grave concerns are raised concerning the constitutional right of civil litigants to a jury trial.

It may well be, as suggests, see post, at 270–271, that the Court’s decision today will be of little practical effect. I, for one, cannot imagine a case in which a judge might plausibly hold that the evidence on motion for summary judgment was sufficient to enable a plaintiff bearing a mere preponderance burden to get to the jury—i. e., that a prima facie case had been made out—but insufficient for a plaintiff bearing a clear-and-convincing burden to withstand a defendant’s summary judgment motion. Imagine a suit for breach of contract. If, for example, the defendant moves for summary judgment and produces one purported eyewitness who states that he was present at the time the parties discussed the possibility of an agreement, and unequivocally denies that the parties ever agreed to enter into a contract, while the plaintiff produces one purported eyewitness who asserts that the parties did in fact come to terms, presumably that case would go to the jury. But if the defendant produced not one, but 100 eyewitnesses, while the plaintiff stuck with his single witness, would that case, under the Court’s holding, still go to the jury? After all, although the plaintiff’s burden in this hypothetical contract action is to prove his case by a mere preponderance of the evidence, the judge, so the Court tells us, is to “ask himself … whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Ante, at 252. Is there, in this hypothetical example, “a sufficient disagreement to require submission to a jury,” or is the evidence “so one-sided that one party must prevail as a matter of law”? Ante, at 251–252. Would the result change if the plaintiff’s one witness were now shown to be a convicted perjurer? Would the result change if, instead of a garden-variety contract claim, the plaintiff sued on a fraud theory, thus requiring him to prove his case by clear and convincing evidence?

It seems to me that the Court’s decision today unpersuasively answers the question presented, and in doing so raises a host of difficult and troubling questions for which there may well be no adequate solutions. What is particularly unfair is that the mess we make is not, at least in the first instance, our own to deal with; it is the district courts and courts of appeals that must struggle to clean up after us.

In my view, if a plaintiff presents evidence which either directly or by permissible inference (and these inferences are a product of the substantive law of the underlying claim) supports all of the elements he needs to prove in order to prevail on his legal claim, the plaintiff has made out a prima facie case and a defendant’s motion for summary judgment must fail regardless of the burden of proof that the plaintiff must meet. In other words, whether evidence is “clear and convincing,” or proves a point by a mere preponderance, is for the factfinder to determine. As I read the case law, this is how it has been, and because of my concern that today’s decision may erode the constitutionally enshrined role of the jury, and also undermine the usefulness of summary judgment procedure, this is how I believe it should remain.