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Thursday, April 19, 2018

An even more unusual role

I have written before that Justice Thomas rarely assigns majority opinions, given seniority and the Court's ideological breakdown. Well, according to Slate's Mark Joseph Stern, Tuesday's opinion in Sessions v. Dimaya marked the first time in 25 years on the Court that Justice Ginsburg assigned a majority opinion, when Justice Gorsuch provided the fifth vote with the Ginsburg/Breyer/Sotomayor/Kagan block. That fifth vote, if it comes, usually comes from the Chief or Kennedy, both of whom are senior to RBG. In addition, Stern (citing Adam Feldman) says this was the sixth time a female justice assigned an opinion; the other five were by Justice O'Connor, who usually did not get to assign because she was in a majority with Chief Justice Rehnquist or Justice Stevens.

The assignment power remains an interesting future project. I have to figure out the different empirical routes that must be explored.

Posted by Howard Wasserman on April 19, 2018 at 12:35 AM in Howard Wasserman, Law and Politics | Permalink


Interesting points. Although it becomes theoretically more frequent if we account for recusals (which obviously are rare).

I guess we have two interesting empirical questions: 1) Is it taking longer for justices to move into assignment position compared with 30-50 years ago and 2) Did the # 4 Justice assign more frequently when you had a less sharply ideological court?

Posted by: Howard Wasserman | Apr 19, 2018 2:53:22 PM

I think it was mathematically impossible for RBG to have assigned a majority opinion until 2010, ideological breakdown or not. In order to assign the majority opinion, you have to have four justices more junior to yourself with you. In order for that to happen, there must *be* four justices more junior to you on the bench. According to my analysis of wikipedia's list of justices, that didn't happen until 2010. So until then, it was simply impossible.
From then until 2017, RBG would have needed a 5-4 decision with the perfect breakdown of RBG, Alito, Sotomayor, Breyer, and Kagan. How many 5-4's are there? 5 a year? So, even without the supposed 4-1-4 ideological breakdown of the Court, it would be very unlikely for her to have assigned a majority opinion.

To put this in (non-gendered) perspective, I don't think Alito or Breyer could have ever assigned a majority opinion either. Now, finally, Breyer can, in the perfect 5-4 lineup of Breyer, Alito, Sotomayor, Gorsuch, and Kagan.

Posted by: Biff | Apr 19, 2018 1:08:13 PM


Is there a list somewhere of Thomas assigned opinions?

Posted by: Joe | Apr 19, 2018 12:30:28 PM

Link to Stern article needs to be fixed.

Posted by: Joe | Apr 19, 2018 10:19:06 AM

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