Having talked this through with various people (including particularly Marty) and looked more at the argument transcripts and related opinions, I’m now slightly revising my assessment of who is writing in the December sitting.
I made my original pointless and unsubstantiated prediction here.
Whereas I previously guessed that Souter was writing in Raich, my thinking is now that there are two opinions: one by the Chief and one by Souter (concurring, joined by the Lopez dissenters). Whether the Chief has a majority or instead a plurality (so designated because it would be a narrower opinion for reversal than an opinion per Souter) depends on whether any of the Lopez majority voted to affirm the Ninth Circuit. My sense remains that the hold-up in the case remains Justice Souter, rather than a contentious victory for those defending the California statute.
Previously, I had discounted the possibility of the Chief as the author of the principal opinion because he already wrote once in this sitting (Muehler v. Mena, decided Mar. 22) and wrote two opinions in the October sitting (Kowalski v. Tesmer and Leocal v. Ashcroft). I now think that because the Chief did not write in the November sitting, he would have felt comfortable assigning himself a second opinion (i.e., Raich) from the December sitting.
I remain blameless for my remaining baseless conjecture — that Justice Souter has Miller-El and that Justice Stevens has Livestock Marketing (it’s virtually a coin-toss given that they both previously wrote in the previous commodity promotion cases) — unless and until by chance they (like my insightful and reasoned prediction that Justice Kennedy had the wine cases) come true.
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