The only two opinions not yet issued from the February sitting are those from the Vermont campaign-finance cases and from the Texas redistricting cases. And only Justices Kennedy and Breyer have not yet issued lead opinions from that sitting. This would ordinarily suggest that they were assigned the majority opinions in those two cases — a very intriguing possibility, in light of those Justices’s views in cases such as Vieth, Shrink Missouri and McConnell.
However, as both Richard Lazarus and Linda Greenhouse suggest, it’s possible that Justice Kennedy originally was assigned to write the majority opinion in Rapanos/Carabell, in which case perhaps Justice Scalia is writing the lead opinion in one of the campaign cases. And, of course, as with many election-law cases, there is a significant possibility of fractured or shifting majorities, split decisions, and “controlling” separate concurrences. Moreover, we do not yet have a a clear sense of whether Chief Justice Roberts will adhere to Chief Justice Rehnquist’s general practice of fairly equal opinion-writing assignments in each sitting. All of which is to say that, not surprisingly, the results of the election cases remain very difficult to predict.
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