Prognosticating the remaining opinions

By Tom Goldstein
on Jun 16, 2011 at 12:09 pm

Now is the time that we can really let loose the dogs of speculation regarding which members of the Court are writing opinions, and what the result will be.

My best bets are below.  Preliminarily, recognize that this is not even a serious exercise.  There are too many unknowns.  But I’m giving my best guess, with the reasons.  My aspiration is that half of these will be correct.

November:

• Entertainment Merchants (violent video games) – Chief Justice Roberts, affirming.  Intuitively, Justices Alito or Sotomayor – who have no opinions from this sitting – should be the most likely authors.  But there were two evenly divided cases that sitting, and there is the prospect that Justice Sotomayor lost the majority in the Tohono O’odham case.  At bottom, it seems too unlikely to me that the Chief Justice went until January before writing multiple opinions in a sitting.  He is also the natural author, having written last Term’s Stevens dog-fighting opinion.

January:

• Stern (Anna Nicole Smith) – Justice Breyer, reversing.  Justice Breyer has not written from this sitting.  And he loved Anna Nicole Smith.  Not in that way, at all.  But he was very into the case the last time it was at the Supreme Court.  My relatively uninformed read of the transcript is that he favored reversing.  (Justice Ginsburg wrote the last opinion in this case, but she is an unlikely author given the distribution of her other opinions.)

• Goodyear/McIntyre (personal jurisdiction) – Chief Justice Roberts, announcing test.  These two cases could certainly produce opinions by different authors.  But it would be sensible for them to be decided together.  The Chief Justice’s distribution of opinions seems likely to make this a good fit, and the issue is important to the judiciary.

February:

• Bullcoming (Confrontation Clause) – Justice Ginsburg, reversing.  Justice Ginsburg is due to write an opinion in this sitting.  The choice of which case she has is something of a toss-up, but she was very into the facts of Bullcoming at argument.  Justice Ginsburg also writes very quickly, so it’s somewhat more likely that if she had Freeman (the other case from this sitting, which is less contentious), it would be done and out.  From the argument and her past votes, if she writes, Bullcoming likely wins.

• Freeman (resentencing after plea agreements) – Justice Thomas, affirming.  One Justice in this sitting will have two opinions, and Justice Thomas would be next in seniority for that assignment.  He is also likely to write one more majority overall.

March: March is a very hard sitting.  It is the most speculative.  Six cases remain.

• Wal-Mart (class actions) – Justice Ginsburg, reversing.  There has to be an explanation for why Justice Ginsburg hasn’t gotten more than five opinions out thus far this Term, and the most likely answer is that she has this gargantuan case.  The Court is very likely to reverse, and it makes sense that it would be assigned to one of the women, who are also more liberal.  She is also an expert in class action law.

• AZ Free Enterprise (public financing) – Chief Justice Roberts, reversing.  The Chief Justice has considerable campaign finance expertise and experience.  And this is the most significant issue after Wal-Mart.
• Duryea (public employee retaliation) – Justice Kennedy, reversing.  Justice Kennedy has a lot of interest and expertise in First Amendment issues of this kind.  He wrote the most on-point opinion, Garcetti v. Ceballos.  At argument, he seemed inclined to reverse.
• Turner (right to appointment of counsel) – Justice Scalia, affirming.  Justice Scalia is due to write an opinion in this sitting.  I think he’s likely to dissent in PLIVA.  And McBride does not seem an important enough assignment.  So I give him Turner by default.
• McBride (FELA) – Justice Ginsburg, affirming.  For the reasons given in discussing the April sitting below, I think that Justice Ginsburg did not get an April assignment.  So she has two from March.  I think she’s likely to have the least important remaining case (because Wal-Mart is so consuming), which means McBride.  My uninformed read of her take at oral argument was that she would affirm.
• PLIVA (generic drug failure to warn) – Justice Sotomayor, affirming.  This is the last remaining case.  Justice Sotomayor will have an opinion.  So I give it to her by default.  She seemed inclined at argument to affirm.

April:

• Sorrell (data mining and First Amendment) – Justice Kennedy, affirming.  Justice Kennedy seems a natural fit, given his First Amendment expertise.  If he is writing, the plaintiffs seem most likely to win.  (Disclosure:  I argued the case for the plaintiffs, so this would be great.)
• American Electric Power (global warming) – Justice Breyer, reversing.  Given the distribution of opinions, this one is likely to be written by either Justice Breyer or Justice Ginsburg.  It seems unlikely that Justice Ginsburg would get both this case and also Wal-Mart, given that AEP is so significant.  So I give it to Breyer by default.  It also seems sensible for one of the Court’s more liberal members to write this opinion, to eliminate the suggestion that it is a corporate give-away.