The Outcome and Authorship of the Race Cases
I think we can now say with even greater confidence that, assuming the race cases are decided by a single majority opinion (as seems likely), the programs are going to be invalidated in an opinion per the Chief Justice. As Jason’s StatPack reveals, in the November sitting, two sets of cases are left to be decided: the race cases and the Ledbetter employment-discrimination case. Only the Chief Justice and Justice Alito have yet to write from that sitting.
As for the outcome, both the Chief Justice and Justice Alito are most likely to support the challenges to these programs. The Chief is most likely to assign the opinions to himself, given their exceptional importance. Also notable is the fact that Justice Alito wrote two majority opinions in the previous sitting (November), making it quite unlikely he would get the “double” assignment of the race cases.
It remains possible that Justice Kennedy is writing his own majority opinion going the other way (i.e., favoring one of the programs) in one of the cases. That seems to me very unlikely. Justice Kennedy is no fan of the use of race in government decisionmaking. The argument also did not suggest the Court was going to split the baby in this way. And Justice Kennedy has already published majority opinions in Oct., Nov., Dec., Jan., and Feb. That productivity suggests he has not been held up by work on a significant majority opinion in one of the race cases. Similarly, the other potentially realistic author of an opinion sustaining one of the programs — Justice Stevens — has issued majority opinions for Oct., Nov., Dec., Jan., and Apr.
So, this is speculation as usual. But I would bet on the Chief Justice writing the opinion(s) deciding these cases, in rulings that likely will be regarded as his most significant opinions for quite some time.
UPDATE: Along the lines of my exchange in the comments below, here are my speculative predictions (based on very little evidence) for the authorship of the remaining opinions through Feb:
Ledbetter: SAA
Race cases: JGR
WEA: AS
Safeco/Geico: DHS
Claiborne/Rita: JPS
Hein: SGB
It follows then that Justice Breyer is the most likely author for Rita/Clairborne. Once Justice Stevens is ruled out as a likely author of any deeply significant opinion (other than in a case argued very late in the term), that leaves the Chief Justice, along with Justices Breyer, Thomas, and Alito, as possible authors for Rita and Claiborne. Thomas and Alito are unlikely because they have already issued two opinions from a previous sitting, so they were probably left out as authors in the six case (counting Rita and Claiborne as one) February sitting. Given that the Chief is probably busy writing the race cases, and that Justice Breyer (to the extent I can recall) has not delivered an extensive opinion this term to date (whether in majority, concurrence, or dissent), it seems likely that Breyer was assigned to pick up in Rita/Claiborne where he left off in Booker/Fanfan.
Comment by Jacob Berlove — May 21, 2007 @ 9:48 pm
Jacob, that makes more assumptions and inferences than I think is fair. I’m going to go out on a limb and predict that Stevens is writing Claiborne/Rita and that Breyer is writing Hein.
I think you can say confidently that Caliborne/Rita is not being written by any of the Justices who have already written in February (Scalia, Kennedy, Souter, and Ginsburg) or any of the Justices who have already written twice in a sitting, given that not everyone gets a February assignment (Alito, Thomas, and Roberts (on my hypothesis and counting the race cases as 2)). That leaves Stevens and Breyer.
Then you look to another clue: This process of elimination tells you that Stevens and Breyer are the likely authors of Claiborne / Rita (assuming the sentencing cases are decided by a single opinion, which may be an ambitious assumption) and Hein. (Soduku for S. Ct. geeks.)
Here is where you have to move to inference. Stevens was much more active at the argument in the sentencing cases than he was in Hein (in which Breyer was quite active). And Stevens has of course written in the post-Apprendi sentencing area. So I give the nod to the odds being that he has the sentencing cases, leaving Breyer with Hein.
Comment by Thomas Goldstein — May 21, 2007 @ 10:35 pm
Maybe I am missing some chess pieces over here, but let’s say Alito is writing the race cases and Roberts is writing Hein. Isn’t that plausible?
Comment by Jacques McKenzie — May 22, 2007 @ 10:31 am
Plausibility sets a pretty low bar, so absolutely. But for Alito to have the race cases (assuming he votes to reverse), the Chief in December would have had to have given up three reasonably important cases — the race cases, KSR, and Twombly — in order to assign himself an employment case, Ledbetter. That’s possible, but seems unlikely.
It remains possible that the Chief nonetheless has Hein. For that scenario to occur, Stevens and Breyer would probably have to split the authorship of the sentencing cases, because as a practical matter (assuming no switches in 5-4 cases where someone loses a majority) both still are due to produce majority opinions from the Feb. sitting.
Comment by Thomas Goldstein — May 22, 2007 @ 10:53 am
Well, this just proves how terrible I am at chess and gambling.
My prediction is Roberts takes both of the race cases and Alito concurs or Roberts takes one of the race cases and Alito takes the other.
And Roberts takes Hein.
Comment by Jacques McKenzie — May 22, 2007 @ 2:36 pm
A random thought here:
Most Court-watchers are assuming that the five more conservative justices are going to strike down one or both of the pupil assignment schemes. That’s certainly what I would bet on, but it’s not the only explanation for the wait. The conservatives may be trying to woo one or more of the more liberal justices over to their side, crafting an opinion that doesn’t undermine the Michigan cases.
Granted, this scenario is not likely. If the conservatives want to block the schemes, they are not likely to get any credit just because one of the more liberal justices joins them (at least, no credit amongst the general population). It’s also not likely that Thomas or Scalia would go along with some halfway, split-the-baby decision (at least not signing to such an opinion). The best explanation for the current wait is that the majority and minority are trading barbs in what will probably be pointed opinions.
The main motivatiton the conservative justices might have, were they following my hypothetical, would be to reduce criticism of the Court. They might be hesitant to throw too much red meat to the left with the upcoming election. But I don’t think the Chief Justice would go along with that. He did sign onto Ayotte, the New Hampshire abortion case where the Court side-stepped the main issue. But that was only because of behind-the-scene shenanigans by O’Connor. Now that he has his 4+1 majority, he’s not likely to want to wait several years before he corrects (what he sees as) a constitutional wrong.
Comment by Nathan Cardon — May 23, 2007 @ 2:33 pm