The Court’s Remaining Opinions

As Lyle notes below, the remaining opinions are Hamdan and Clark v. Arizona. Assuming that there was no vote switch, it is possible to predict the authors of those opinions and the outcomes with some confidence.

Justice Stevens is the only Justice who has not written a majority opinion from March, which would mean that he has the majority (or plurality) in Hamdan, which means that Hamdan presumably will win in at least some respect. [ML adds: This presumably means that Justice Kennedy voted for reversal at conference. And it’s unlikely that he has switched his vote in the interim, because in that case the Court would affirm the decision below by an equally divided Court — something that could have been announced before the last day of the Term. What will be interesting to see is whether and to what extent Justice Kennedy joins a JPS opinion. Technically, Justice Stevens does not need Justice Kennedy’s “join” — he only needs his vote. But in order to assure that his opinion is treated as a clear precedential majority opinion, rather than a plurality vote of four of eight Justices, Justice Stevens needs to have Justice Kennedy on-board. In Rasul, Justice Stevens offered a pointed and important cite, in the all-important footnote 15, to Justice Kennedy’s concurrence in Verdugo-Urquidez, with respect to whether alien detainees are protected by the Due Process Clause. That wasn’t enough to garner Justice Kennedy’s vote to join the majority opinion — he wrote separately, concurring on an alternative basis — but in that case Justice Kennedy was the sixth vote. In Hamdan, his presumably is the fifth vote. Therefore it’s fair to assume either that Justice Stevens’s opinion will reflect whatever was necessary to persuade Justice Kennedy, or that a separate Kennedy opinion will be viewed as the governing opinion.]

Every Justice has written a majority opinion from the April sitting, in which Clark was argued. The most likely author is Justice Souter. He has written fewer majority opinions than any other Justice, having apparently lost the Garcetti v. Cebalos majority (his October-sitting opinion) after Justice Alito replaced Justice O’Connor and not having written two majority opinions in any sitting. The next most likely possibilities are (i) Justice Breyer, who wrote two December-sitting majorities but apparently lost the majority in his January sitting case after Justice Alito joined the Court, and (ii) Justice Stevens, who has not written two majority opinions in any sitting this Term.