The December Calendar and Opinion Authorship Speculation
on May 3, 2005 at 1:08 pm
The Court is on recess until Monday, May 16. That morning, it will release orders from the May 12 Conference and (presumably) multiple opinions.
The Court has decided all of the argued cases from its October and November sittings.
From the December sitting, four cases remain:
(1) Ashcroft v. Raich on the Commerce Clause and medical marijuana (11/29);
(2) Miller-El v. Dretke on Batson and race-based preemptory challenges (12/6);
(3) Granholm v. Heald (and 2 other consolidated cases) on the Commerce Clause and restrictions on wine importation (12/7); and
(4) Veneman v. Livestock Marketing Ass’n (and 1 other consolidated case) on commodity promotion programs and the government speech doctrine.
Three Justices have not published majority opinions from the December sitting and therefore are presumably the authors of three of the four remaining cases: Stevens, Kennedy, and Souter.
It’s hard to speculate on who may be authoring particular opinions. Although that never stopped us before, here it seems almost impossible to do anything other than guess. Stevens, Kennedy, and Souter were among the most active Justices at all four arguments. Each of them has expertise or recent experience with the issues in more than one of the cases.
The most I can say is that, based on the Chief’s past assignment practice, Justice Souter is likely writing two majority opinions from December. All of the more senior Justices already have written multiple opinions in a single sitting: Rehnquist (October); Stevens (November); O’Connor (December); Scalia (October); and Kennedy (November). The Chief could have assigned himself two for December to make up for the fact that he did not write for a majority in November. But I think that is unlikely: he is a lightning fast writer and he has already released opinions from January and February.
A real problem in predicting is that Justice Kennedy easily could have any of the opinions. He authored the majority opinion in Miller-El the last time the case was at the Court, and the case is heavily fact bound so that the author this time will benefit from great familiarity with the case. He also authored the majority in the predecessor to the Livestock Marketing case, United States v. United Foods, as well as the last opinion discussing government speech at length, Legal Services Corp. v. Velazquez. He is a likely author for Raich if, as most people assume, the government is going to win, because in the predecessor Oakland Cannabis case Justice Stevens wrote and Justice Souter joined an opinion expressing some sympathy for medical marijuana use. Finally, Justice Kennedy was extremely active in the wine argument.
Here is my best bet, emphasizing it is just a guess. I bet that Justice Souter has Raich and is writing a lengthy, historical discussion of the Commerce Clause. I bet he also has Miller-El, and that the opinion has been delayed because the case is very fact-bound and it is taking a long time to prepare. (If Justice Kennedy had Miller-El, it probably would already have been released.)
I next bet that Justice Stevens has the Livestock Marketing case, having written for the Court in the first commodity promotion case, Glickman v. Wileman Bros., and then written separately in the United Foods case as well.
That would leave Justice Kennedy with the wine cases.
If that’s how it works out, remember that you heard it here first. If not, like I said, I was just guessing and nobody could possibly know.
