There are four decisions outstanding from cases argued in 2010 "“ two from each of the November and December sittings.   The two November cases are the "violent videogames" case (Brown v. Entertainment Merchants Ass'n, No. 08-1448), and Flores-Villar v. United States, No. 09-5801, an equal protection challenge to the federal government's disparate treatment of male and female U.S. citizens for purposes of establishing the citizenship of their children born overseas.  The two December cases are Chamber of Commerce v. Whiting, No. 09-115, involving whether Arizona laws imposing obligations on employers with respect to alien employees are preempted by federal immigration laws; and Janus Capital v. First Derivative Traders, No. 09-525, which concerns the circumstances under which service providers can be held primarily liable in private securities-fraud actions.

It appears likely that Justices Alito and Sotomayor were assigned the lead opinions in the two November cases; and that the Chief Justice and Justice Thomas have the two December assignments.

Who is writing what?  Pure conjecture, of course, even assuming that my assumptions about the four initial assignments were correct (not necessarily so) and that none of the four assignees has "lost" a majority in the interim (which might not be the case).

But if one had to guess, I think it's a fair bet that the Chief has kept the Arizona case for himself.  It's an important federalism case in its own right, perhaps especially the aspect dealing with the federal E-verify program; and of course the decision could have a significant impact on the fate of the Ninth Circuit's recent holding that sections 2(B) and 6 of Arizona's more recent immigration-related law, S.B. 1070, are preempted"”a decision that could be before the Court as soon as next Term (depending on whether there is any en banc review).  Lyle's account of the Whiting argument suggests that the Chief was strongly inclined to vote with Arizona.  That account also suggests the possibility that Justice Kennedy might be writing separately"”perhaps with a controlling or limiting opinion on certain aspects of the case, or an opinion that explains why there is an equally divided Court on one or more of the questions.  (If the vote had been four-four across the board, and there were therefore a summary affirmance with no majority opinion, it is unlikely it would have taken this long for the dissenting opinions to have been written, unless one or more of the four pro-Arizona Justices voting for affirmance are taking the unusual step of writing an opinion in support of the judgment below in response.)

It's even less certain which Justice is writing the opinions in the two November cases.  It is widely assumed the Court is likely to declare the California videogame statute unconstitutional.  One might therefore suspect the opinion would not be assigned to Justice Alito, since his solo dissents in the recent Stevens and Snyder cases suggest that his free speech jurisprudence diverges significantly from that of his fellow Justices.  And at oral argument, Justice Alito addressed most of his most pointed questions to counsel for the industries challenging the California law"”which makes it unlikely he is writing for a Court that will declare the law invalid.  (On the other hand, if the Justices were inclined to uphold the law, perhaps it is just the sort of Free Speech Clause case that would be assigned to Justice Alito.)

The primary question in Flores-Villar is what to make of, and whether to extend, the Court's 2001 ruling in Nguyen v. INS, in which the Court upheld a related discriminatory citizenship provision by a vote of five to four (with the majority including now-retired Justice Stevens).  Neither Justice Alito nor Justice Sotomayor was on the Court when Nguyen was decided.   Justice Sotomayor was very active at oral argument in Nguyen, just as she was in the videogame case.  Justice Alito asked only two brief questions to clarify the history of the law.  But this isn't always a very reliable indicator of who was assigned the opinion.

As Anna Christensen explained in her argument recap,  even if the Court is inclined to rule in the petitioner's favor on the merits, the Justices were also deeply engaged on the question of the Court's authority to remedy unlawful sex discrimination by enjoining the Executive branch to award citizenship where Congress has not authorized it.  (In the 1980's, the Court held that, at least in some circumstances, the Court could order the federal government to expend unappropriated funds to cure unconstitutional sex discrimination; Flores-Villar raises an analogous question in the context of an award of citizenship.)  Perhaps the delay in issuing the opinion is the result of multiple opinions on the substantive and remedial questions.

Posted in Merits Cases

Recommended Citation: Marty Lederman, Tea leaves from 2010, SCOTUSblog (May. 23, 2011, 11:34 AM),