The Effect of Justice Alito
This timing of Justice O’Connor’s retirement provides an unusual opportunity to isolate the effect of the appointment of Justice Alito on the Court’s jurisprudence.
Three cases were reargued this Term after Justice O’Connor’s departure. Based on the pattern of the assignment of majority opinions, it is possible to make a very educated guess on whether the appointment of Justice Alito changed the outcome of the case. It appears that the answer in two cases is “yes,” and the answer in one is “no.”
Garcetti v. Ceballos was originally argued in the October sitting, then reargued. The eventual opinion was authored by Justice Kennedy and Justice Alito joined the opinion. The principal dissent was written by Justice Souter. Justice Kennedy already had an opinion from the October sitting, so that if Justice Kennedy had the majority prior to reargument he would have been writing 2 majorities for that sitting. But because there were only 8 cases argued in October, no Justice should have ended up writing the opinions for the Court in two cases. Justice Souter ended up with no opinions from the October sitting. So it is fair to conclude that Justice Souter had the majority before Justice O’Connor’s retirement, then lost it when Justice Alito joined the Court.
Hudson v. Michigan presents a similar scenario. It was argued in the January sitting, then reargued. The eventual opinion was authored by Justice Scalia and Justice Alito joined the opinion. The principal dissent was written by Justice Breyer. Justice Scalia already had an opinion from the January sitting, so that if Justice Scalia had the majority prior to reargument he would have been writing 2 majorities for that sitting. But because there were only 9 cases argued in January, no Justice should have ended up writing the opinions for the Court in two cases. Justice Breyer ended up with no opinions from the January sitting. So it is fair to conclude that Justice Breyer had the majority before Justice O’Connor’s retirement, then lost it when Justice Alito joined the Court.
In the third reargument, Kansas v. Marsh, the retirement of Justice O’Connor seems not to have made a difference. Marsh was argued first in December, then reargued. The eventual opinion was written by Justice Thomas and Justice Alito joined the opinion. The principal dissent was written by Justice Souter. Justice Thomas ended up with no opinion from the December sitting, indicating that Marsh was the opinion he would have authored for that sitting had it not been reargued. Justice Souter wrote a majority opinion for that sitting, indicating he did not lose a majority from that sitting. So it is fair to conclude that Justice Thomas had a majority in Marsh before Justice O’Connor’s retirement and retained it when Justice Alito joined the Court.
I think there may be additional, more subtle effects as well, Tom, of Justice Alito’s tenure on the Court. For example, at first glance, it might appear that Justice Alito’s position in the campaign finance case decided yesterday (Randall v. Sorrell) was not determinative (It was a 6-3 opinion). But upon closer inspection, it could have been that the presence of Justice Alito (rather than Justice O’Connor, who had voted to uphold many of the recent campaign finance laws challenged in the Supreme Court) led Justice Breyer to reverse his vote in this case, thereby being in the position to write a narrower opinion preserving more of existing campaign finance law. Had Justice Breyer joined Justice Souter’s dissent, it is possible that Alito, Kennedy, Roberts, Scalia, and Thomas could have agreed on an opinion that would have been much more far reaching in striking down campaign contribution laws.
Rick Hasen
TG responds: Thanks Rick. I’m sure that there have been innumerable ways that Justice Alito’s presence on the Court has made a difference, potentially including the one you identify. I didn’t mean this post to be exhaustive, just illuminating in a single, narrow respect.
Comment by Rick Hasen — June 27, 2006 @ 5:09 pm