The Outcome and Authorship of the Race Cases
on May 21, 2007 at 7:59 pm
I think we can now say with even greater confidence that, assuming the race cases are decided by a single majority opinion (as seems likely), the programs are going to be invalidated in an opinion per the Chief Justice. As Jason’s StatPack reveals, in the November sitting, two sets of cases are left to be decided: the race cases and the Ledbetter employment-discrimination case. Only the Chief Justice and Justice Alito have yet to write from that sitting.
As for the outcome, both the Chief Justice and Justice Alito are most likely to support the challenges to these programs. The Chief is most likely to assign the opinions to himself, given their exceptional importance. Also notable is the fact that Justice Alito wrote two majority opinions in the previous sitting (November), making it quite unlikely he would get the “double” assignment of the race cases.
It remains possible that Justice Kennedy is writing his own majority opinion going the other way (i.e., favoring one of the programs) in one of the cases. That seems to me very unlikely. Justice Kennedy is no fan of the use of race in government decisionmaking. The argument also did not suggest the Court was going to split the baby in this way. And Justice Kennedy has already published majority opinions in Oct., Nov., Dec., Jan., and Feb. That productivity suggests he has not been held up by work on a significant majority opinion in one of the race cases. Similarly, the other potentially realistic author of an opinion sustaining one of the programs — Justice Stevens — has issued majority opinions for Oct., Nov., Dec., Jan., and Apr.
So, this is speculation as usual. But I would bet on the Chief Justice writing the opinion(s) deciding these cases, in rulings that likely will be regarded as his most significant opinions for quite some time.
UPDATE: Along the lines of my exchange in the comments below, here are my speculative predictions (based on very little evidence) for the authorship of the remaining opinions through Feb:
Ledbetter: SAA
Race cases: JGR
WEA: AS
Safeco/Geico: DHS
Claiborne/Rita: JPS
Hein: SGB
