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10 Commandments Speculation

As I mentioned in an earlier post, there are five February cases outstanding, including the two Ten Commandments cases. There has been a good deal of speculation that the Court would split the baby between the two cases, with Justice O’Connor providing the fifth vote to invalidate one display and to sustain the other. In that scenario, it makes much more sense to have a single Justice write the Court’s two majority opinions, and for that Justice to be SOC. Imagine competing majority opinions by Justices Stevens and Scalia, for example; they would probably be very different and hard to reconcile.

The notable fact is that Justice O’Connor has already issued a February opinion: Lingle v. Chevron. It would be highly unusual for her to be assigned not just a second but also a third majority opinion for that single sitting.

So, based solely on the too-thin reed of Justice O’Connor’s Lingle opinion, I think the odds favor one side having won both of the Ten Commandments cases. Odds are, that’s the government. If a single Justice has both opinions, it is probably Justice Thomas (cf. Mitchell v. Helms), with the obvious possibility that Justice O’Connor is writing separately.

The assumption of this post, of course, is that the Court will issue two separate opinions in the Ten Commandments cases. That is the most likely result based on its past practice. But here as in all things the Court can do whatever it wants.