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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.

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