Analysis: Some Thoughts on Opinion Authorship and the Dynamic in the Court
on Jun 26, 2007 at 1:36 pm
Three decisions remain to be issued on Thursday: the Seattle and Louisville race cases; Leegin on minimum resale price fixing; and the Panetti capital case on competence to be executed. The Chief Justice is almost certainly the author of the school race decision, as he is the only Justice who has not written an opinion from the December sitting.
The other two are hard to predict. My best guess is that Justice Stevens is writing Leegin (he has an antitrust background and has not written from March) and Justice Kennedy is writing Panetti (he is the controlling vote in capital cases and only has six majority opinions so far this Term). If that is so, the Court likely will decline to overrule Dr. Miles in Leegin and will rule for the defendant in Panetti. A further interesting dynamic would be if Justice Stevens issues a majority opinion in Leegin with a heavy emphasis on the importance of stare decisis (declining to overturn Dr. Miles) as a counterpoint to the Chief Justice’s opinion in the school cases (which practically if not formally will limit Justice O’Connor’s Grutter decision approving limited affirmative action in educational admissions).
But confident predictions about the authors of those two decisions are impossible to make because we do not know either who was writing the majority opinion in the Claiborne sentencing case from February before it was dismissed or who wrote the per curiam opinion in the Weaver case from March. If Stevens or Kennedy had either of those, that could affect the distribution of the opinions.
Another outstanding question is who is writing the principal dissent in the school cases. The most likely candidate to my mind is Justice Breyer, though only for reasons of symmetry, which is a thin reed on which to rest a prediction. The other Justices on the left have all issued significant dissents, reading from the bench: Stevens in Uttecht, Souter yesterday in Wisconsin Right to Life, and Ginsburg in Carhart and Ledbetter. Only Justice Breyer hasn’t done so, and it may be his turn.
It’s also interesting to look back at how the ideological dynamic of the Term played out from within the building, as a possible explanation for the seemingly growing frustration of the Court’s more liberal members. Sixteen cases this Term have been decided five-to-four along ideological lines – eleven favoring conservatives; five favoring liberals. (As I discussed in an earlier post, the only arguably significant victory for the left was the global warming case, Massachusetts v. EPA.)
The public sees the cases in the order they are decided; the Justices, of course, see them in a different order: when they are argued. As of January (half way through the Term), the results would have been perceived within the building as quite conservative (particularly before the Winter recess), but nonetheless at least somewhat mixed. The right would have secured majorities in the most significant decisions – the race cases, Carhart, and Ledbetter (all of which were argued before the recess). But Massachusetts v. EPA, Marrama, and the three Texas death penalty cases (the last of these cases to be argued) would have favored the left. In five cases, Justice Kennedy would have joined the right; in five others, he would have joined the left.
In the second half of the Term, the results would have been more consistently one-sided. Thus far, we know of six cases decided five-to-four on ideological grounds in that period, all favoring conservatives. Three were significant (two giving rise to dissents from the bench): Hein, Uttecht, and Wisconsin Right to Life. (The only counterpoints may be Leegin and Panetti, discussed above, which haven’t yet been decided.) At the same time, the likely contentious exchanges of majority and dissenting opinions in Carhart (decided in April), Ledbetter (May), and Uttecht (June) would have been going on. In fact, between May 14 and June 25, an extraordinary eight cases were decided along ideological lines, all favoring conservatives (with the school cases still to come). As a consequence, the last two months of the Term have likely been quite demoralizing for the Court’s more liberal members.
