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Tuesday, June 30, 2015

An unusual role

During Monday's SCOTUSBlog opinion-announcement LiveBlog, a reader asked about how often Justice Thomas assigns opinions. And I realized that the answer is "not very often." Given seniority and the ideological/jurisprudential position of the various justices, Thomas only assigns the opinion if he is in the majority and the Chief, Scalia, and Kennedy (the three justices senior to him) are not. And that just does not happen very often. Thomas is in agreement (at least as to judgment) with the Chief 69% of the time, with Scalia 77 % of the time, and Kennedy 65 % of the time. And then he assigns only if he also has four of the justices who are junior to him (with whom, other than Alito, he agrees far less often) going along with him.

And I then realized that one of his rare assignments was Walker v. SCV. And he gave the opinion to Breyer, which is an interesting move. Ron Collins argued that Thomas's vote in this case may have been influenced by his unique perception of a racist symbol such as the Confederate Flag and how the First Amendment should treat such symbols. (Dahlia Lithwick and Garrett Epps made a similar point about Walker in a podcast and Epps wrote about it in the Atlantic). If so, one might have expected Thomas to keep the case for himself, precisely so he could talk about that unique symbol and how it might have affected the First Amendment analysis. Or we might have expected him to keep the case simply because he so rarely gets to assign.

Anyway, another unique feature of Walker, a case which could have some long-ranging effects.

Posted by Howard Wasserman on June 30, 2015 at 10:31 AM in Howard Wasserman, Law and Politics | Permalink

Comments

Interesting. I imagine Ginsburg also rarely assigns majority opinions because she'd have to have Alito but not any of the other conservative leaning justices. An good trivia question might be who the fifth most senior justice to have assigned the most opinions was. You'd want a block of five justices appointed by the opposite party as the other four, but not including the Chief Justice. Maybe Lincoln's first appointment? Did they even use that system back then?

Posted by: Brad | Jul 1, 2015 2:01:30 AM

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