The Remaining Merits Opinions
Updated 9:30pm
Jason’s forthcoming update to the Stat Pack will list all of the cases remaining to be decided for the Term. Here is my best guess on how they are divided. As always, the authorship predictions are highly speculative, when they can be made at all. (The details follow after the jump.)
December: race cases — the Chief Justice
February: Hein (religion) — the Chief Justice; Rita (sentencing) — Alito
March: Morse (bong hits), Wilkie (takings / government harassment), Leegin (antitrust), and Tellabs (securities) — divided among the Chief Justice, Stevens, Kennedy, and Alito
April: Defenders of Wildlife (environment), TSSAA (student athletics), Panetti (capital), and WRTL (campaign finance) — divided among Kennedy, Souter, Ginsburg, and Alito.
Here is the detailed version.
From December, we have the race cases. The Chief Justice is the only person not to have written from that sitting. Logically, he is authoring the decisions. His questioning at argument strongly suggests he views the programs as unconstitutional.
From February, we have two outstanding decisions: Rita (sentencing) and Hein (religion). Five Justices have not written from that sitting: the Chief, Stevens, Thomas, Breyer, and Alito. I think that the Chief and Alito are the likely authors. Thomas is out, having already written eight majorities. The Chief is unlikely not to have assigned himself anything from that sitting. And Justice Alito likely has three outstanding majority opinions (having authored five so far), making him a likely author in this sitting. Thinking of it from the Chief’s perspective, I would say that he has Hein (sticking to my most recent vacillating prediction) and that Alito has Rita (a view influenced by the sense of the lawyers in the field that the government won Rita).
From March, we have four outstanding decisions: Morse (bong hits); Wilkie (takings / government harassment); Leegin (antitrust); and Tellabs (securities). Six Justices haven’t written: the Chief, Stevens, Kennedy, Souter, Ginsburg, and Alito. The Chief is unlikely not to have assigned opinions to himself, Kennedy and Alito. Stevens likely could assign something to himself. This prediction is particularly cloudy, however, because an unknown member of the Court wrote the per curiam opinion in Watson.
From April, we have four outstanding decisions as well: Defenders of Wildlife (environment), TSSAA (student athletics), Panetti (capital), and WRTL (campaign finance). I think they are divided among Kennedy, Souter, Ginsburg, and Alito. Only Alito hasn’t written, so he has one. Souter and Ginsburg must be writing (if they didn’t in March) in order to get to seven opinions for the Term. Scalia, Thomas, and Breyer have each written twice, so they are out. That leaves Stevens and Kennedy, and I presume that Kennedy has the final opinion because the Chief would give him eight majorities for the Term.
Any predictions on which way Leegin will go and who will write the opinion and dissent? (I ask from a presumption of lack of unanimity, and I further predict the outcome will not fall on typical 4-4-1 fault lines.) Breyer’s enthusiasm for the subject made him a likely author of an opinion or dissent, I believed at the time, but your macroscopic analysis seems to indicate that’s unlikely.
Comment by David.Huberman — June 18, 2007 @ 4:04 pm
The prediction of Alito writing Morse is certainly interesting in light of his recent comments about the First Amendment at the Nat’l Italian American Foundation luncheon.
Comment by Phillip Edens — June 18, 2007 @ 4:38 pm
Mr. Goldstein,
Why did you switch your prediction for Rita from Breyer to Alito? Given their Cunningham dissent, both justices presumably voted for the government in Rita, and neither has written in the February sitting, Alito already has two majorities from one of the other sittings (the one in which he wrote James and the opinion rejecting Crawford retroactivity), and Breyer’s work on the Sentencing Commission and authorship of the Booker remedial opinion make him a logical choice to assign the opinion to in Rita. So I’m really curious why you changed your prediction.
Comment by Jacob Berlove — June 18, 2007 @ 7:17 pm
Oops, I almost forgot. While Alito has five opinions so far, my count gives Breyer seven (without Rita). Wouldn’t a more senior justice typically be given an extra majority opinion? If Breyer was assigned Rita, Alito still can have seven cases, which is apparently how many you think Breyer ended up with.
TG responds: You’re absolutely right that this comes down to whether I think Breyer or instead Alito will have the 8th majority. My bet is now on Alito, but there obviously is no way to be sure. Breyer has already knocked out three opinions from March and April, which would be impressive if he also has Rita. I also don’t think seniority is the touchstone here. For example, Thomas has eight majorities, and (assuming that Stevens had Claiborne as his eighth) there is almost no practical way for the remaining more senior Justices — the Chief and Justice Kennedy — to both have eight.
Comment by Jacob Berlove — June 18, 2007 @ 7:25 pm
Mr. Goldstein,
Apologies for posting three straight comments here, but one more thing gets me. Why do you think the Chief wrote the Per Curiam in Weaver when his concurrence states that he doesn’t agree with all the reasons it stated for the court’s disposition?
TG responds: That’s a great catch; I was just wrong.
Comment by Jacob Berlove — June 18, 2007 @ 7:42 pm
I’ve responded to Jacob’s comments above. His point about the Chief and Weaver caused a little bit of a cascade in my guesses about who is writing which opinions, so those have been revised as well.
Comment by Thomas Goldstein — June 18, 2007 @ 9:55 pm
Tom–
What is the reasoning behind believing an opinion is coming in Rita. If the Court was putting the case over for reargument, wouldn’t that order traditionally come on the last day of the term?
–Andy Siegel
Comment by amsiegel — June 18, 2007 @ 10:27 pm
For those of us keeping score, let’s give another 1/2 point to Mr. Goldstein for Rita :) He originally chose Breyer :)
Comment by David.Huberman — June 21, 2007 @ 10:25 am
After he chose Stevens, that is :)
Comment by Jacob Berlove — June 22, 2007 @ 2:33 pm