Well, it appears I likely was right about the Chief Justice and Justice Thomas writing Whiting and Janus, respectively, from the December sitting — but that was hardly any great shakes, prognostication-wise.

I also surmised that, from the November sitting, Justice Alito was writing a majority or plurality opinion in Flores-Villar, the sex discrimination case, and that Justice Sotomayor thus was likely assigned the violent video games case.

In today’s Live Blog, however, Tom suggests that perhaps Justice Sotomayor was assigned the Tohono O’odham Nation case from November, and then lost the majority along the way.  I think he might well be right.  In her concurring opinion in that case, Justice Sotomayor argues that the majority unnecessarily (and in her view incorrectly) decided a question that the Court did not need to reach.  Perhaps she had five votes for her narrower ground for reversal at conference, or perhaps she was originally on-board with the broader holding but her views changed as she was writing and she was unable to persuade a majority to go along with the narrower decision.  It is a bit odd that it took six months for that case to be decided.

What makes Tom’s guess most compelling, however, is the fact that the Chief Justice has not yet issued more than one opinion from any of the Term’s sittings, whereas Justices Scalia and Kennedy each have written two majorities from two of the first three sittings.  It would be a break from the norm for the Chief not to have shouldered more of the workload himself in those first three sittings.  Therefore, Tom surmises (and I agree) that it is likely the Chief has or had the majority in one of the two remaining November cases — probably the violent video game case (because as I explained before, it’s unlikely but not impossible he would have assigned that to Justice Alito) — and that Justice Alito has the other.

Of course, this could be entirely wrong.  Just covering our bases . . .

Posted in Everything Else

Recommended Citation: Marty Lederman, November tea still steeping–Goldstein course correction, SCOTUSblog (Jun. 9, 2011, 10:55 AM), http://www.scotusblog.com/2011/06/november-tea-still-steeping-goldstein-course-correction/