In sum, Justice Breyer finds that the unmistakability language found in those earlier decisions might reflect the "unique features of sovereignty" present.
In a brief opinion, Justice Scalia defines the Unmistakability doctrine in a new way and subsequently rejected the Sovereign Acts doctrine as adding nothing to the law.
Additionally, Justice Scalia criticizes the plurality opinion for finding the Unmistakability doctrine was not applicable to the facts presented in the case.
Applying congruence principles, he argues that the Unmistakability doctrine does little beyond "normal principles of contract interpretation.
This summary rejection is less surprising when one realizes that Justice Scalia's explanation of the Unmistakability doctrine is based on the same principles that the plurality and dissent use to describe the Sovereign Acts doctrine.
Rehnquist's Dissent--Saving Unmistakability and Sovereign Acts
In a dissenting opinion, Chief Justice Rehnquist expresses concern that the plurality has announced sweeping and untenable changes to the Unmistakability doctrine and virtually eliminated the Sovereign Acts doctrines.
The dissent argues that the primary opinion effects drastic changes in the Unmistakability doctrine "shrouding the residue with clouds of uncertainty.
The plurality opinion argues that the contracts at issue in Winstar, unlike the earlier precedents, "do not purport to bind Congress from enacting regulatory measures"--and hence, the Unmistakability doctrine should not be applied.
Likewise, the dissent does not believe that the Unmistakability doctrine has impaired the government's ability to enter contracts.
Justice Scalia errs by relying on the findings of lower courts that ruled the Unmistakability doctrine does not apply.
All agree that the Unmistakability doctrine is a "canon of construction.
Contrary to common sense, the plurality finds an enforceable contract before they decide to apply the Unmistakability doctrine.
While the plurality may have used this technique to sidestep application of the Unmistakability doctrine, they ignore the minefield they may have entered.
Equally faulty is the plurality's application of an untenable "remedy-based" test to determine application of the Unmistakability doctrine.