We welcome any citation, republishing, or repurposing of these facts and figures.  We only ask that you acknowledge SCOTUSblog as the source.  You can download any individual data set below:

• Summary Memo
• Opinion Tally
• Justice Agreement
• Decisions by Final Vote
• Frequency in the Majority
• Opinion Authors by Sitting
• Circuit Scorecard (Please note, there was a slight correction on the Circuit Scorecard chart on 6/30.)
• The Court’s Workload
• Grant Rates by Conference
• OT08 Questions Presented and Results (with embedded links to slip opinions)
• Visual Representation of Supreme Court Voting Lineups (sorted by case name, author, and number in the majority)

• The Court’s Workload
• Opinion Authors by Sitting
• Circuit Scorecard
• Decisions by Final Vote
• Frequency in the Majority
• Justice Agreement
• Non-unanimous Agreement
• Visual Representation of Voting Lineups

• Opinion Authors by Sitting
• Circuit Scorecard
• Decisions by Final Vote
• Frequency in the Majority
• Justice Agreement
• Justice Agreement for Non-unanimous Cases

For all statistic reports from OT95 onward, please see our archives on SCOTUSWiki here.
*There are 16 merits cases outstanding. Melendez-Diaz v. Massachusetts (07-591) is the only remaining case from the November conference and Coeur Alaska (07-984/07-990) is the only remaining from the January conference.

*Justice Kennedy still has only three dissents, voting with the majority in 95% of all cases and 92% of divided cases.  Of the 16 cases where the Court divided 5-4, Justice Kennedy has been in the majority in all but one: Arizona v. Gant (07-542).

*Chief Justice Roberts and Justices Stevens, Souter and Ginsburg have already exceeded their total numbers of OT07 dissenting votes.  Last year, Justices Stevens and Ginsburg each dissented 17 times;  they have so far 21 and 18, respectively. Justice Souter has 18 dissents this year and had 16 last year.  With seven votes, Chief Justice Roberts dissented the least last term; this term, he has dissented 12 times. (As a point of comparision, in OT06, he dissented eight times and in OT05, he dissented seven.)

• Opinion Authors by Sitting
• Circuit Scorecard
• Decisions by Final Vote
• Frequency in the Majority
• Justice Agreement
• Justice Agreement for Non-unanimous Cases

The chart of Questions Presented has been updated to include the most recent opinions, available here.

Some notable points:

*Only one case is outstanding from the November sitting–Melendez-Diaz v. Massachusetts (07-591). Three cases are outstanding from December–Haywood v. Drown (07-10374); Ashcroft, Former ATT’Y Gen. v. Iqbal (07-1015); and AT&T Corp. v. Hulteen (07-543). Three cases are also outstanding from January–Coeur Alaska (07-984/07-990); Montejo v. Louisiana (07-1529); and Boyle v. U.S. (07-1309).

*Justice Anthony M. Kennedy has only authored two opinions thus far–Bartlett v. Strickland (07-689) and Negusie v. Mukasey (07-499)–but has most frequently joined the opinion of the Court. He’s dissented in just three cases–Arizona v. Gant (07-542); Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi (07-615); and the per curiam summary ruling in Spears v. United States (08-5721).

*Justice John Paul Stevens is winning the contrarian award so far. He’s been in the majority least frequently–32 out of 48 opinions, or 66.7%–and has the highest rate of disagreement with other justices. He’s disagreed completely with Justice Antonin Scalia and Justice Clarence Thomas in 48% of cases and with Chief Justice John G. Roberts and Justice Samuel A. Alito in 46%. In comparison, at this point in OT07, Justice Stevens had disagreed with the conservative justices in 21%-36% of cases. Justice David H.  Souter is close behind–he’s been in the majority in only one more case than Justice Stevens and has similarly high rates of disagreement with the conservative justices.

• Opinion Authors by Sitting
• Circuit Scorecard
• Decisions by Final Vote
• Justice Agreement
• Justice Agreement for Non-unanimous Cases

Additionally, the chart of Questions Presented has been updated to include the most recent opinions, available here.

30 cases have been decided of the 79 consolidated cases scheduled for argument. The next StatPack will compare this term’s docket to OT07, but one immediate standout from the Circuit Scorecard is the continued presence of the 9th Circuit, taking up 20.3% of the docket with 16 cases; last year, 10 of 71 cases, or 14%, came from the 9th Circuit.

Also notable is that all of the October sitting arguments have been decided except for Arizona v. Gant (07-542),  on the scope of the Fourth Amendment in car searches. All of the Justices have written at least one opinion from October, with the Chief Justice and Justices Souter and Ginsburg writing two each. The only outstanding cases from the November sitting are FCC v. Fox Television Stations (07-582), on “fleeting expletives,” and Melendez-Diaz v. Massachusetts (07-591), on a defendant’s right to cross-examine forensic analysis. Justice Scalia has not yet written an opinion from the November sitting; Justices Stevens, Thomas, and Breyer have each written two from November.

The next StatPack will include a Justice Agreement chart and a cert grant trend chart. Please e-mail kmoore [at] akingump [dot] com with comments on what other analysis would be helpful.

Taking on a task newly assigned to it by the Supreme Court, the D.C. Circuit Court in the next few weeks will be faced with answering a constitutional question of historic dimensions: what part of the Constitution extends to Guantanamo Bay, and to the foreign nationals held prisoner there?  This is a crucial test of what the Supreme Court meant in its June 12 ruling in Boumediene v. Bush.

Here is how that inquiry is likely to proceed:  on about Jan. 9 (unless the Court shortens the time), the Justices will formally put into effect the order they issued on Monday to the Circuit Court to look again at the Boumediene ruling.  The specific task will be to apply that ruling to the claims of four Britons that they were tortured and suffered religious discrimination at Guantanamo when they were there.

The first step by the Circuit Court is likely to be a call for new written briefs on that issue, on a timetable that may run at least into February.  The Circuit Court may then hold a hearing on it, before beginning deliberating on a decision.

This timetable has a special significance because it means that the new review will take place after Barack Obama has become President, and it will be his Justice Department that will file the government’s views in the case.  Whether the new administration will abandon the Bush Administration restrictive view on the rights of Guatanamo detainees is ucnertain at this point, but it seems a fair prospect.

The Britons lost their case in the D.C. Circuit last Jan. 11,  They appealed that rulng to the Supreme Court (Rasul, et al., v. Myers, et al., 08-235).  They asked the Supreme Court to take on the case itself, and apply its Boumediene decision to it.  As an alternative, they suggested that the Justices return the case to the Circuit Court for another look under Boumediene. The Justices took the second option.

In the Boumediene decision, the Justices had overturned another ruling of the Circuit Court, issued Feb. 20, 2007, which had concluded that those being held at Guantanamo have no constitutional rights whatsoever.  The Circuit Court had summed up that view this way: “Precedent in this court and the Supreme Court holds that the Constitution does not confer rights on aliens without property or presence within the United States.”

In the Britons’ case raising constitutional and other claims about conditions at Guantanamo, the Circuit Court quoted that same language in turning down those claims. Noting that the Supreme Court was then considering whether to review the Circuit Court’s Boumediene ruling, the panel in the Britons case said that “we must folow Circuit precedent until and unless it is altered” either by the full Circuit Court en banc or by the Supreme Court.

The Supreme Court, of course, has now overturned that Circuit precedent, at least in part.  It ruled, at the least, that the detainees do have one constitutional right — a right to pursue a habeas case “to challenge the legality of their detention,” as Justice Anthony M. Kennedy put it.

Given that holding, the Court majority said, “we need not discuss the reach of the [habeas] writ with respect to claims of unlawful conditions of treatment or confinement.”  The Justice Department last month, in urging the Supreme Court not to hear the Britons’ appeal, relied specifically upon that statement in an attempt to show that the Court’s constitutional conclusion in Boumediene was very limited.

The Department added: “Boumediene did not overturn the Court’s prior rulings that the individual-rights provisions of the Constitution run only to aliens who have a substantial connection to our country and not to enemy combatants who are detained abroad.” The Britons, to be sure, dispute that interpretation.

The British ex-detainees also had a part of the Court’s Boumediene decision that they insisted buttressed their position, contending that this shows that Boumediene was not so limited.

A bit of background before reciting that portion of the Kennedy opinion, since the quotation is somewhat convoluted: The Court’s overall decision in Boumediene had two foundation points that related to this issue. One was that the Constitution’s separation of powers, preserving a significant role for the courts to second-guess presidential detention decisions, contained a strong “liberty” element — that is, a significant guarantee of freedom from arbitrary restraint. The second was that the detainees had been held for quite prolonged periods, which enhanced their claim to some assurances about seeking their freedom through habeas.

Here is the quotation on which the Britons relied, perhaps bearing directly on the scope of the detainees’ “liberty” interests: “Because the Constitution’s separation-of-powers structure, like the substantive guarantees of the Fifth and Fourteenth Amendments, see Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886), protects persons as well as citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-of-powers principles, see, e.g., INS v. Chadha, 462 U.S. 919, 958-959 (1983).”

The Britons’ lawyers read that comment as indicating that non-citizens have significant “liberty” interests, including some level of protection under the Fifth and Fourteenth Amendments.  Those amendments guarantee “due process” and condemn discrimination.  The Britons’ case complaining of mistreatment at Guantanamo invokes both concepts, as well as other constitutional provisions.  The Justice Department does not read this quotation the same way, to be sure.

Parsing these competing visions of Boumediene is likely to be at the heart of the Circuit Court’s new inquiry into the ruling’s scope and intention.  There are, of course, other details of the competing interpretations of what the Justices meant, but the government’s narrow reading of Boumediene and the ex-detainees’ expansive reading of it will be central.

Another issue that is likely to figure prominently in this new inquiry is, even assuming the Britons have some constitutional rights they can assert against their keepers at Guantanamo, do those officials have immunity to those claims?  Not surprisingly, the two sides have sharply contrasting views over whether immunity is available in the context of Guantanamo’s operation.

The Justice Department did put forward its claim of immunity in urging the Supreme Court not to hear the Britons’ case at this stage.  The Department said this issue made the Britons’ case “not a proper vehicle” for addressing such constitutional claims.  The Court, without taking a position on that claim, did not turn aside the Britons’ petition, but instead returned the case to the Circuit Court, where the immunity issue will no doubt be another central question.

Still, if the Circuit Court follows the accustomed procedure for dealing with immunity claims, it would first have to decide whether the detainees have constitutional rights, and then consider whether they were recognized rights at the time of the claimed incidents involving the Britons at Guantanamo.  (The Supreme Court is now considering, in a separate case [Pearson v. Callahan, 07-751] whether to change this order of consideration of immunity case issues. The outcome of that inquiry, too, may affect what the Circuit Court does.)

Justice Anthony M. Kennedy’s reputation as a “swing” vote in the Supreme Court is well known, and frequently validated. It is not often, though, that the tendency to swing is evident as early as the oral argument in a case. But on Monday, in the space of an hour, Kennedy saw the case of Melendez-Diaz v. Massachusetts  (07-591) from two entirely different perspectives. In the end, though, Massachusetts seemed to be on the losing end of his switch.  Seemingly somewhat exasperated with each side, Kennedy’s patience wore thinnest when the Massachusetts attorney general was at the lectern.

The case, at its core, is simple: is a crime lab report a form of testimony, so that the prosecution may not use it at trial to buttress its case unless the technician or chemist who prepared it is at the trial to defend the test results under cross-examination?

Kennedy initially saw a potential problem if the Court were to answer yes to that question.  He foresaw ”a very substantial burden” on the prosecution and on the courts, and told counsel advocating for confrontation that he was significantly underestimating the impact.  But, as the hearing moved along, Kennedy saw as “a very important point” that California has not experienced such a burden and “gets along all right” with summoning lab analysts to the stand with some frequency. He faulted the two lawyers arguing against confrontation for lacking a rationale that would keep the prosecution’s use of unexamined lab reports in check.

He also appeared to be on both sides of the issue of whether crime lab reports were the reliable results of objective science based on standardized protocols, or were prosecutorial documents drawn up explicitly to serve as criminal evidence against the accused.  In the end, though, he seemed to be suggesting that, as a constitutional matter, there had to be some limits.  For example, he objected with some fervor to the suggestion, made by the federal government’s lawyer, that if it was machine-generated, it should routinely come into evidence without more.  “There are all sorts of machines,” he said. “Just because a machine was involved…you can’t make a sensible exception [to confrontation] on that basis.”

Jeffrey L. Fisher, the Stanford law professor arguing for the right to confront the lab chemists, had the significant benefit of Justice Antonin Scalia’s seemingly unqualified support. Scalia, who has made himself the chief protector of the Confrontation Clause, was ready to bolster Fisher’s argument at critical points, repeatedly making the point that crime lab reports are drawn up precisely to link physical evidence to the accused, and to support the prosecution’s case.

There were only a couple of points on which Fisher was significantly pressed.  Justice Kennedy, aside from worrying over the potential impact on courts and trials, suggested that even if lab chemists had to show up for trial to defend their reports, they might not have much to say that could be of aid to the defense, so why call them?  Justice Samuel A. Alito, Jr., echoed Kennedy, wondering whether Fisher was “arguing for an empty exercise.” And Justice Ruth Bader Ginsburg indicated that, if a chemists’ testimony was so potentially valuable to the defense, it could call the chemists to the stand on the defense side of the case.

Fisher sought to deflect Kennedy’s points by saying that having the right of confronting a lab technician was not producing heavy burdens where that practice actually exists. To Kennedy and Alito, he argued that confrontation would not be “fruitless” and should be available to defense counsel who deems it of potential value.  To Ginsburg, the professor said that leaving it to the defense to summon the chemists would be to shift the burden of making a case from the prosecution to the defense.  “It is the prosecution’s duty to put on witnesses” to make its case, he said.

Massachusetts Attorney General Martha Coakley had trouble from the outset drawing distinctions between eyewitness testimony for which confrontation is required and crime lab reports, as Justice David H. Souter, along with Scalia, pushed the point.  She also failed to impress with a key point both in her brief and her oral argument: the Court has never had a confrontation case involving a lab report.

Before long, Justice Kennedy was stressing to Coakley the arguments he said she had to be ion making, and mildly chastized her when she did not do so.  When he asked her to comment on why California was not having problems with confronton over lab reports, she at first responded that California was one of 35 states supporting Massachusetts in the case (only to have Chief Justice John G. Roberts, Jr., point out that she was in error on that). Then she said she had no information on California, but contended that confrontation of the kind would be “an undue burden” in Massachusetts.

As she was preparing to close, the Chief Justice asked for Coakley’s reaction if a lab test report was the central issue in a case, she said it would be “a bad strategic decision” to rely only on a report of that kind. But Kennedy sharply retorted: “That’s a non-reason.”

The federal government, in the case as an amicus supporting Massachusetts, did not fare particularly well in the presentation by Assistant to the Solicitor General Lisa H. Schertler.  Her main theme, as in the government’s brief, was that lab reports are simply machine-generated data.  They are, she suggested, like a courthouse clerk’s statement that a particular document offered at trial was a true copy.

Justice Scalia pounced: “But that is not material that was prepared for trial, to prosecute the individual.”  And she fared no better, with Justice Kennedy, in arguing for a confrontation clause exception for machines and their output.  Justice John Paul Stevens, too, voiced some skepticism on that point.

Kennedy asked Schertler to comment on the California experience. She said she had no information, but noted that, since a local appeals court in the District of Columbia had required confrontation with lab analysts in drug cases, “court appearances required of chemists have increased by 500 percent.”  There was no time left for any Justice to examine what that meant.

The Court is expected to decide the case in the winter or early spring.

There is very little information that can be gleaned with confidence about the authorship of the remaining opinions from the Term.

It does look exceptionally likely that Justice Scalia is writing the principal opinion for the Court in Heller – the D.C. guns case.  That is the only opinion remaining from the sitting and he is the only member of the Court not to have written a majority opinion from the sitting.  There is no indication that he lost a majority from March.  His only dissent from the sitting is for two Justices in Indiana v. Edwards.  So, that’s a good sign for advocates of a strong individual rights conception of the Second Amendment and a bad sign for D.C.

Backing up to February, there are two remaining cases (both argued, like the guns case, by Walter Dellinger):  Morgan-Stanley (an energy regulation case) and Exxon (the maritime punitive damages case).  Six Justices haven’t written from the sitting, making predictions very dicey.  The best guess is that Chief Justice Roberts and Justice Stevens are writing.  Justices Scalia, Souter, and Kennedy are unlikely because they had already written twice in a sitting before February.  Justice Ginsburg wrote twice in later sittings.

For April, there are four opinions remaining:  Plains Commerce (involving Indian tribes), Kennedy (death penalty for child rape), Davis v. FEC (campaign finance), and Giles (a Confrontation Clause case).  Justices Scalia, Kennedy, and Alito have not written and therefore almost certainly have three of the opinions.  The most likely author for the remaining decision is Justice Souter (who needs another opinion to take him to seven for the Term).

With the exception of Heller, these predictions have no genuine value.  They are just informed guesses and none says anything about the outcome of the cases.

As the StatPack indicates, there are now ten cases to be decided before the Court recesses for the summer, including three of the highest profile cases of the year – DC v. Heller (Second Amendment), Kennedy v. Louisiana (death penalty for child rape) and Exxon v. Baker (punitive damages over Exxon Valdez oil spill). We wanted to give those readers awaiting these decisions a quick primer on what to expect over the next week.

The timing of opinions.  There is only one decision day next week on the Court’s official calendar: Monday, June 23, when the Court’s public session will begin at 10 am eastern.  However, as the Court has done for the past two weeks, it’s certain that the Court will sit on one or more additional days later in the week.  Based on past practice, if the Court holds one additional opinion day, it will likely be the Thursday (June 26) as it did last Term.  If it holds two additional opinion days (which is more likely, given that ten opinions remain), the added days will likely be Wednesday (June 25) and Thursday (as it did in the 2005 Term).

(Of course, the Court isn’t required to finish by June 26, but it has concluded the Term before July every year for the last decade.  Monday June 30 is also a possible last day, but is unlikely because the Court internally plans on finishing each Term during the fourth week of June.)

After the jump, I discuss the basics of how we predict which Justices will author which opinions and our current sense on that issue.

Predicting which opinions will be issued.  No one unaffiliated with the Supreme Court is told what opinions will be handed down on a given morning or even how many will be issued, and this includes the Supreme Court press corps.  Thus, which opinions are issued is a complete to surprise to everyone outside of the building except for the last day of the Term, when we can use the process of elimination to predict which opinions will be issued.

Predicting opinion authors.  First, a bit of background: at the Supreme Court, the most senior justice in the majority assigns who will author the opinion in a given case.  Since the Chief has been in the majority in all but five cases this term, he has assigned the author of 54 opinions.  Justice Stevens, who has been in the majority in all of  those cases in which the Chief dissented, assigned the author in four of the remaining cases.  In one case, US v. Santos, it’s not quite accurate to say that Justice Stevens “assigned” the plurality opinion to Justice Scalia to the extent that Justice Alito may have originally had, but then lost, a majority.  For more on the complexities of the Santos case, see Marty Lederman’s post here.

While assignment is the prerogative of the Chief in most cases, it is common practice for the Chief and the Court to attempt to divide opinions up somewhat evenly, both within each sitting and across the term as a whole.  For various reasons, including the potential for a justice to switch his vote, the varying number of times in which a justice is actually in the majority, as well as the simple fact that the number of cases decided will likely not be an exact multiple of nine, the opinions are never divvied up exactly evenly.  Last Term, each Justice authored between 6 and 8 majority opinions.

Likewise, individual sittings are divided up roughly but not exactly evenly: for cases argued in this term’s November sitting, seven Justices authored one majority opinion, Justice Souter authored two majority opinions, and Justice Alito authored none.  Nonetheless, looking for the even distribution of opinions among the justices is the best way we have to guess the authors of outstanding opinions.

February.  In this sitting which featured only seven arguments, there are two outstanding opinions and six justices who haven’t yet written.  As Tom pointed out in today’s LiveBlog, all of those justices have already written twice in one sitting.  The bottom-line: in terms of predicting who is writing Exxon or Morgan-Stanley, “it’s a complete toss-up.”

March.  Two opinions remain: Rothgery v. Gillespie and the case many of our readers our waiting eagerly for, DC v. Heller.  Two justices have not yet written in the sitting: Souter and Scalia.  As both of them have only written five total opinions thus far, it seems quite likely that these two are the outstanding authors, barring some sort of vote-switching.  Based on the tenor of oral argument, it is widely expected that the individual rights view of the Second Amendment will prevail in the guns case, which means that it appears that Justice Scalia may well be writing the opinion for the majority, leaving Rothgery to Justice Souter.  It remains a possibility, of course, that if Justice Scalia is the author, his opinion commands only a plurality.

April.  With six remaining opinions from the final argument session, it’s tough to predict who is writing any of these cases.  In order to achieve a term-wide balance of opinions, Justices Scalia, Kennedy, Souter, and Alito should each have at least one of the April cases.  The other two authors could be any of the other Justices.  We may be able to get a better handle on this sitting after Monday’s opinions.

Yesterday, the Court announced that it has added a public session for this Thursday, June 12, in order to issue additional opinions.  We will once again have “LiveBlog” coverage of that session beginning at 10 am eastern on Thursday.

As we note in the latest StatPack, the Court is on track to hear 70 arguments this Term, and from those – because of various dismissals and equally divided affirmances with no signed opinion – the Court will release a maximum of 67 signed opinions before the Court adjourns for its Summer Recess. Thus, if there are no additional dismissals or per curiam opinions after argument, that number would match last year’s low number of signed opinions; the new edition of the Compendium allows us to more precisely put this output in historical context.

As can be seen from this graph (compiled using data culled from the Compendium’s Table 2-8 and our own data), if the Court ends the Term with 67 signed opinions, it will tie OT06 for the second-lowest output of signed opinions since the Court took meaningful control of its own docket following the enactment of the Judicial Act of 1925. With this Term in the number two spot, the historical low of the certiorari era occurred in the 1953 Term, which saw 65 signed opinions.

Interestingly, that Term, despite the Court’s lowered output, is one of its most famous: it marked the arrival of Chief Justice Earl Warren to the Court and, with him, the unanimous decision in Brown v. Board of Education, perhaps the Court’s most well-known opinion in its history. As the editors of the Harvard Law Review noted in the statistical recap of that Term, the landmark Brown decision, “undoubtedly occup[ied] much of the Court’s time and occasion[ed] the decrease in dispositions on the merits….” Indeed the editors were proved correct, as the 1954 Term saw an immediate 20% increase in signed opinions over 1953, and then the output held steady at about 100 signed opinions per Term for the remainder of Chief Justice Warren’s time on the Court (during his 15 years as Chief, the Court averaged 96 signed opinions per Term).

In fact, the conclusion of this Term will mark the culmination of the lowest output of any arbitrary 10-year stretch since the aforementioned beginning of the true modern era at the Court in 1926, and by quite a wide margin. Again, projecting 67 signed opinions for OT07, the Court will have produced 725 signed opinions from 1998-2007, or 72.5 per year. As recently as the 10-year period from 1979-1988, the Court was producing nearly 140 opinions per year, meaning the number of signed opinions is down by more than 50% in just 20 years.

Yet, there are indications that the last two years may represent a point of inflection of sorts for the Court (see our previous post here). Updating those details, with the Court’s most recent grants, the Court remains on pace to grant 120 cases in the time period that would typically include cased to be argued during OT08 (i.e. February, 2008-January, 2009); given that a few cases will inevitably be dismissed or decided by per curiam opinions, it’s not unreasonable to expect 110 signed opinions from that set of grants if the Court continues on this pace. Of course, hearing that many cases next Term would represent an unprecedented increase in the Court’s caseload, and seems somewhat improbable. Realistically, we can expect either the pace of grants to slow down or the Court to hold extra cases over for argument and decision in OT09, though it’s impossible to say how many.

Note: Comments have been enabled on this entry for thoughts germane to the topic addressed above.

October: The only outstanding decision is Santos, which involves money laundering. Neither Breyer nor Alito have written for that sitting. One of them did not receive an opinion assignment because, while there originally were nine argued cases, Tom F. (an IDEA case) was decided by an equally divided Court and never assigned to be authored. According to a loose tradition, Alito would have been left without an opinion as the most junior Justice. So, Breyer would have Santos.

November: The outstanding decisions are Williams, involving child pornography, and Davis, involving bonds and the Commerce Clause. Alito and Scalia have not written from that sitting. But the two cases are not necessarily divided between the two of them: yet another case, Klein & Co., was argued but dismissed over a month later. So either Alito or Scalia could have had Klein & Co., meaning that another Justice could have either Williams or Davis.

Scalia is an unlikely author of Williams. His views on child pornography are less protective of the First Amendment than a majority of the Court would likely be willing to endorse.

Neither Scalia nor Alito is a particularly likely author of Davis. Scalia has unique views of the dormant Commerce Clause that make him unlikely as an author of a majority opinion. Alito seemed to favor the individual taxpayers/respondents in the case, who I assume are going to lose.

A process of elimination leaves the Williams case to Alito (meaning that the federal law would be upheld) and the scuttled opinion in Klein & Co. to Scalia. To divine the likely author of the third case, Davis, you have to turn to December.

December: The only outstanding decision is Boumediene, the detainee case, and Kennedy and Souter have not written. Kennedy is almost certainly the author, given his apparently decisive vote in the case and the fact that he has written on this issue.

With Souter having no opinion for December, he is the most likely candidate to be writing Davis from November. That is so because the Chief Justice would most likely have not assigned an opinion in December to the Justice who had two assignments in November.

All the usual caveats about this parlor game apply. There are a large number of variables in opinion assignments that are not publicly available. In addition, in the unlikely event that the original assignments could be reverse engineered, the author of them majority opinion could have lost his or her majority. But it is interesting to try.

Note: Comments have been enabled on this entry for thoughts germane to the topic addressed above.

One additional item of curiosity this week: on Monday, the Court granted cert. in Pearson v. Callahan, which included the following directive: “In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: ‘Whether the Court’s decision in Saucier v. Katz, 533 U. S. 194 (2001) should be overruled?’”  One reader emailed us to ask an interesting question: when was the last time the Court sua sponte (i.e. on its own) ordered the parties to address specifically whether it should overrule one of its precedents?

Based on our searches of various databases, the last time this happened (and the only time in recent history) was 1991 in a case called Payne v. Tennessee.  In an order reported at 498 U.S. 1080, the Court amended its grant of a few days earlier to add a question about overruling two of its then-recent capital case precedents, Booth v. Maryland and South Carolina v. Gathers.  In its ultimate opinion, the Court did indeed overrule those two 5-4 decisions by a vote of 6-3, leading Justice Marshall to write a dissent noting that “Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.”

The Court also added questions on its own about overruling precedents in both Patterson v. McLean Credit Union from 1988 and Garcia v. San Antonia Metropolitan Transit Authority from 1985.  In those cases, though, it granted cert., held oral argument, and then asked the parties to reargue the cases addressing whether parts of earlier decisions should be overruled.  Ultimately, Patterson did not overrule the precedent at issue, Runyon v. McCrary (1976), but Garcia did indeed overrule the National League of Cities v. Usery (1976) decision.

Procedurally, even those most in the know about the Court’s procedure are somewhat unclear about the formal process for adding such a question sua sponte.  The order requesting reargument and rebriefing in Patterson led to two dissents from the Court’s more liberal wing – one written by Justice Blackmun, joined by justices Brennan, Marshall, and Stevens, and the other written by Justice Stevens, also joined by Justices Brennan, Marshall, and Blackmun – so that action likely was formally voted on, and likely took five votes.  But when the Court adds a question before argument, as it did on Monday, it’s not clear whether it takes four votes, five votes, or whether it’s done more informally at the request of one or more justices and then mutually agreed upon.