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Monday, June 27, 2005
The Breakdown of the Justices
Ten Commandments | Posted by Tom Goldstein at 01:01 PM
Doug Laycock writes below:
[C]ontrast what the four dissenters say in McCreary (probably what they really believe) with what the same four say in the Van Orden plurality (trying to take account of the Court's precedents). Interesting that after failing to get the fifth vote, they left the Van Orden opinion the way it was instead of rewriting it on the lines of the McCreary dissent. I think to safe to say that the McCreary dissent is a better prediction of their future votes.
Consistent with that, note that Justice Scalia has no majority opinion in that sitting. It seems to me quite possible that Justice Scalia's McCreary County dissent was originally assigned to be the Van Orden majority.
ML asks: Isn't it more likely that AS lost a majority in Spector?
TG responds: I personally think not because Kennedy's Spector opinion has six Justices at one point. (Rich Samp agrees with you in a comment over on SCOTUSblog, however.) I think the Chief may have tried to write something that he hoped Breyer could join, or at least something that when combined with Breyer's opinion articulates something like an intelligible principle of law.
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