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Monday, June 29, 2020

Assignments and female voices

Someone pointed out that June Medical produced six opinions on the right to reproductive freedom, all by male Justices and none by any female Justice. But who is responsible for that?

The first question is who assigned the majority to Breyer. Assignment is by the senior-most Justice in the majority for a judgment/outcome at conference; that means the Chief assigned the opinion to Breyer, then declined to join and wrote on his own, leaving Breyer to write a plurality. But how specific do they get during the conference? Could it be clear at conference that his reasoning was so far from Ginsburg/Breyer/Sotomayor/Kagan that he was not part of that group? For example, suppose G/B/S/K made clear the view that the Louisiana law was broadly invalid while Roberts made clear that he was going along with Whole Women's purely on stare decisis grounds. How does that affect the assignment? This would have made Ginsburg senior-most, meaning she assigned the opinion to Breyer rather than keeping it or giving it to one of her female colleagues.

All three also chose not to write a separate opinion, I presume to maintain a clear plurality (if not majority) voice. Even at the loss of a female voice.

Posted by Howard Wasserman on June 29, 2020 at 08:48 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

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