Marty's prognostications about the likely authors of the outstanding opinions from the November sitting strikes me as the most likely prediction based on the opinions that have been released.  But there's another factor that makes the clues about authorship from that sitting only slightly clearer than the Armed Career Criminal Act's residual clause.  That's the fact that an equally divided Court summarily affirmed in Costco Wholesale Corp. v. Omega, S.A., 08-1423, from the second week of that sitting.

The Court affirmed in Costco on December 13"”five weeks after argument, meaning that a majority opinion may have been assigned, and possibly even circulated; perhaps the vote changed from 5-3 to 4-4 after the opinion circulated.  And if things happened that way, the speedy Justice Sotomayor would have been a good candidate for getting out an opinion in a complex IP case quickly.  Alternatively, it may be that no majority opinion was assigned, but that the Justices spent a few weeks exchanging memos in an effort to move the vote away from 4-4.

In any event, there is the possibility of another opinion assignment from that sitting, so it's not a certainty that Justices Alito and Sotomayor each will have one of the two remaining opinions, Brown v. Entertainment Merchants Ass'n, 08-1448, and Flores-Villar v. United States, 09-5801.  This is another reason to suspect that the Chief Justice may have assigned himself the majority opinion in Brown, the violent video games case.  It would not be unusual for the Chief to retain the opinion in such an important case, particularly if he wanted to write a narrow decision in an effort to attract the maximum number of votes.

Posted in Analysis

Recommended Citation: John Elwood, November tea-leaf reading: the auguries are unclear., SCOTUSblog (Jun. 10, 2011, 12:00 PM),