Opinion Authorship Predictions
In this post, I gave my best guess on the authorship of various opinions. So far, I’ve been right (i.e., lucky): Justice Alito wrote Ledbetter and Justice Souter wrote Safeco/Geico. The prediction of the Chief writing in the race cases is also fairly obvious.
I have my doubts, though, about my sense that Justice Stevens was writing Rita / Claiborne. Jason’s revised stat pack notes that Justice Stevens wrote two majority opinions in Brewer and Abdul-Kabir in January (a point I had missed). That tips the scales in favor of Justice Breyer writing at least one of the opinions in the sentencing cases, which were argued in February; as of that time, he had not written two majorities in a single sitting, so it would not make sense to leave him out of opinion authorship in February.
Claiborne, of course, has now been dismissed. Given the new SG filing just noted by Lyle, it will be interesting to see if the Court elects to decide the Claiborne issue just through broad language in Rita or instead to grant and expedite an alternative vehicle and issue a separate opinion. (A third option would be to defer deciding the Claiborne question until at least next Term.)
There is obviously no way to know whether Justice Breyer had a majority in Rita, in Claiborne, or both. So, the best I can do is change my prediction to say that Breyer will write for a majority.
Correction: I originally predicted that Justice Stevens would write Claiborne / Rita and that Breyer would write Hein. (In the original version of this post I said that I was “sticking” with a prediction of Justice Thomas writing Hein, which is doubly wrong: it wasn’t my prediction, and doesn’t make much sense because Thomas had two opinions in the previous sitting.) This creates a dilemma — you can say confidently that Breyer had a majority opinion in February. It could be Rita or Hein, but could have been Claiborne. With no real way at all of knowing, I’m going to predict that the Chief Justice is writing Hein and that Justice Breyer is writing Rita.
If I remember correctly —
Scalia is left with WEA.
This would be the second close decision this term that Scalia has written.
In the past he has not gotten close decisions.
Has Roberts gotten him to save his poison pen for dissents and try to hold a majority?
roger friedman
Comment by r.friedman — June 5, 2007 @ 7:14 pm
Tom,
Perhaps I am mistaken, but you (1) originally predicted that Breyer would write neither Rita/Clairborne; (2) originally predicted that Breyer or Stevens — not Thomas — would write Hein; and (3) offered no explanation for why the school segregation cases are taking so long, such as:
a. Alito is concurring;
b. The conservatives and liberals are verbally sparring and the conservatives are trying to craft a criticism-proof opinion;
c. Only one of the cases is being struck down;
d. Conservatives are trying to lure over at least one liberal in at least one of the cases.
The key point, though, is that you predicted a liberal, not a conservative, would write Hein, which is not just a reversal of author, but also of outcome.
TG responds: You are absolutely right; just a screw up by me on thinking I had said Thomas. I’ve corrected that, though you’ll see that I’ve also now switched and said — without any real data to make the choice — that I bet Hein is Roberts, which as you say is a switch in the outcome.
Comment by Jacques McKenzie — June 5, 2007 @ 9:24 pm
With the school segregation cases, I don’t think there’s any basis for speculating as to why they’re taking so long. It’s a near-certainty that the Chief Justice had a majority when the Justices voted, and assigned himself the opinion. As to what happened since then, there are any number of possibilities.
Comment by Marc Shepherd — June 6, 2007 @ 11:28 am
Tom,
Thanks for your gracious correction, which enables me to make an excellent response to Marc:
Given that such an esteemed Supreme Court litigator as Thomas Goldstein agrees with me now that Roberts will be writing the opinion in Hein, why are you skeptical that the delay in the two school segregration cases has no relation to who the author of one or both of those opinions is?
Comment by Jacques McKenzie — June 6, 2007 @ 3:38 pm
has relation, rather.
The perils of the Internet.
Comment by Jacques McKenzie — June 6, 2007 @ 3:39 pm
Jacques, I’m afraid I’m just not grasping your point. How would the authorship of Hein (a February case) have anything to do with why the school desegregation cases (from December) are taking so long to come out?
Comment by Marc Shepherd — June 6, 2007 @ 3:50 pm
Then you are either playing dumb or not playing.
My judgment is better than yours.
Comment by Jacques McKenzie — June 7, 2007 @ 12:39 am
Suppose arguendo I am dumb. Can you explain it?
Comment by Marc Shepherd — June 7, 2007 @ 8:28 am
Suppose arguendo you are dumb. In that case, look again at the question I posed to you:
Why are you skeptical that the delay in the two school segregration cases has relation to who the author of one or both of those opinions is?
What ties my likely rightness about Hein to my prospective rightness about the relation of the dealy in the school segregation cases to their author(s) is my judgment. Which is better than yours.
Comment by Jacques McKenzie — June 7, 2007 @ 2:12 pm
The question is sincere. Why do you think that the delay of the school segregation cases is related to Hein?
Comment by Marc Shepherd — June 7, 2007 @ 3:44 pm
You are misreading the question I posed to you:
“One or both of those opinions” refers to one or both of the opinions to issue from the school segregation cases.
Comment by Jacques McKenzie — June 7, 2007 @ 3:49 pm
Oh, now I get you.
I believe Tom Goldstein, along with most observers, believes that Chief Justice Roberts was in the majority for both school segregation cases — at least initially — and that he assigned both opinions to himself. This is based on the fact that Roberts is the only justice who has not yet issued a majority opinion from that sitting.
You asked upthread why Tom hadn’t offered an explanation for why the cases are taking so long. I can only conclude it’s because several explanations are possible, and there are no available “tea leaves” to read.
Roberts could have lost his majority along the way, in one case or both. Or he might be having trouble crafting a rationale that holds five votes. Or maybe the Court is going to produce a highly fractured set of plurality opinions with multiple dissents. You yourself listed several possibilities, all of which are quite reasonable.
Comment by Marc Shepherd — June 7, 2007 @ 5:00 pm
You asked upthread why Tom hadn’t offered an explanation for why the cases are taking so long. I can only conclude it’s because several explanations are possible, and there are no available “tea leaves” to read.
That was also true of his other predictions, some of which he changed without any evidence justifying the change (”With no real way at all of knowing, I’m going to predict that…”). It’s a matter of judgment.
Comment by Jacques McKenzie — June 7, 2007 @ 5:05 pm