Who Could Be Writing 2007’s Remaining Opinions?
With four decisions outstanding from the October to December sittings, we can begin our annual, oft-misguided attempt to divine which Justices are writing which opinions. You can see the outstanding decisions and distribution of authorship in our opinion authors chart here or the SCOTUSwiki case index here.
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.
1. Two of the invisible variables in Boumediene, I would speculate, are (1) the briefing and oral argument in Munaf; and (2) the supplemntary briefing in the case related to Parhat and Bismullah. It is my opinion that Munaf is a perfect test case for a limiting principle in Boumediene and the two cases are having feedback effects on each other. I imagine that goes some lengths to explain the reaction of the bench to Mr. Marguiles’ oral presentation in Munaf.
2. As for Davis, it seemed to me that the Roberts/Alito conservatives were far more respectful of the dormant Commerce Clause in the garbage-hauler case last term (?) than the Scalia/Thomas conservatives. Using the same Justices, I’d slot Souter in for Williams and put Alito in for Davis.
Comment by The always thoughtful and germane Jacques McKenzie — April 7, 2008 @ 12:44 pm
I am certainly nowhere the expert on SCOTUS that Tom is. However, I tend to think that Santos is being written by Alito and not Breyer. Thus far, Breyer has written 2 opinions and Alito only 1. Also, I tend to think that the opinion will be a victory for the government, which in turn suggests that a more “conservative” judge will write it.
Comment by Gregory Dolin — April 7, 2008 @ 12:46 pm
Oh, and I meant to ask whether Tom believes the fact that AMK is writing Al-Odah tends to suggest that the conservatives prevailed. After all, in the previous two enemy combatant cases where liberals prevailed (Hamdan and Rasul) it was JPS who wrote for the Court. I would think that were he in the majority, he would write again.
Comment by Gregory Dolin — April 7, 2008 @ 12:48 pm
Why is the rather routine case of Santos taking so long? One possible explanation is that it was assigned Justice Breyer, and he put the opinion on the back burner while he worked on his treatise dissent in Medellin.
Comment by Kent Scheidegger — April 7, 2008 @ 1:48 pm
“Treatise” was supposed to be in strikeout type in the preceding comment. Guess that attribute doesn’t work here.
Comment by Kent Scheidegger — April 7, 2008 @ 1:49 pm
“Why is the rather routine case of Santos taking so long?”
At oral argument there was a question of whether the case required additional briefing or additional arguments…I think the issue turned out to be thornier than how the parties’ presented it to be.
Comment by Andy Grewal — April 7, 2008 @ 3:26 pm
Just a suspicion: In Boumediene, AMK was assigned to write for one five-Justice majority that the detainees have constitutional habeas rights, but for a very different five-Justice majority that the DC Circuit review in the DTA was a constitutionally adequate substitute for habeas.
Bismullah, however, could well have put a crimp in that outcome: I can’t imagine that Kennedy is any longer so sanguine (if he ever was) about the prospects that the D.C. Circuit review will result in fair and expeditious resolution of the unalwful detention claims.
Comment by Marty Lederman — April 7, 2008 @ 3:35 pm
While I agree with Professor Lederman that at least five Justices will hold that the DC Circuit review in the DTA was a constitutionally adequate substitute for habeas, if they reach the question, and I agree that the jurisdictional question could be argued either way (I am uncertain exactly where Kennedy comes down and I doubt that the period of time of detention guts the jurisdictional argument, as Professor Lederman appears to believe http://balkin.blogspot.com/2007/12/quick-take-on-boumediene-oral-argument.html), I think the delay is more likely due to no clear five-Justice majority having taken shape with regard to what it means “that the detainees have constitutional habeas rights”. Nor do I think that Bismullah really puts a crimp in that outcome by swaying Justice Kennedy’s view on the fairness and expeditiousness of the unlawful detention claims.
Though I was not involved in the briefing in Boumediene, as was Professor Lederman, in my opinion the difficulty might be in determining whether the constitutional rights to habeas that detainees have contains any more substance than the right to file a lawsuit, and drafting wording to that effect that draws in a sixth vote rather than eliciting a harsh dissent that harms the legitimacy of the Court.
Comment by The always thoughtful and germane Jacques McKenzie — April 8, 2008 @ 1:13 am
I tend to think that Santos is being written by Alito and not Breyer. Thus far, Breyer has written 2 opinions and Alito only 1. Also, I tend to think that the opinion will be a victory for the government, which in turn suggests that a more “conservative” judge will write it.
Or it could be assigned to Breyer in an effort to keep him part of a pro-government majority. Has Roberts made those sorts of seemingly strategic assignments?
Comment by Roger Ford — April 8, 2008 @ 7:24 pm