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Thursday, June 10, 2021

Opinions and Assignments

Two thoughts as the Court again issued one opinion (from November)

1) Since May 17, the Court has issued twelve opinions in seven "opinion days," issuing two or more opinions three of those days and one opinion on each of the remaining four. The Court has issued one opinion on eleven of its opinion days this Term. They have 21 argued cases left and three weeks in the Term, so likely six opinion days and an average of three opinions per day. And those that remain are among the most controversial and most important. Obviously the Court can issue opinions only when they are ready and cases with more and longer opinions take more time. But it is hard to avoid the sense that the Court is doing the equivalent of a "document dump"--dumping out major opinions in a flood, overwhelming those whose job it is to parse, understand, and critique the Court's work in the immediate political moment. This is distinct from the longer scholarly term. Scholars can write articles about these cases whenever and the timing of their issuance does not matter. But scholars also do and should provide immediate comment and critique and that is impossible when every day produces multiple major decisions.

2) Thursday's decision in Borden was a 4-1-4 split. Kagan wrote for Breyer, Sotomayor, and Gorsuch; Thomas concurred in the judgment; Kavanaugh dissented for the Chief, Alito, and Barrett. So a question: Who assigned this opinion, Breyer or Thomas? The practice is senior-most associate justice in the majority. Is it the majority for the judgment/outcome? So at conference, Thomas, Breyer, Sotomayor, Kagan, and Gorsuch vote to reverse, the assignment goes to Thomas, and if the writer (Kagan, in this case) loses a majority in the course of drafting, oh well? Or if at conference it is obvious that Thomas' views (apart from the result) are different than Breyer, et al., Breyer assigns? The former would seem to be more administrable because one never knows if the write can get a majority until she tries. The same issue arose with June Medical last Term--did the Chief assign the opinion because he was in the majority to reverse or did Ginsburg assign because the Chief's reasoning was always different? Does anyone know for sure?

3) Rick Hasen gets it and it amazes me that Justice Breyer does not appear to. It is one thing for Breyer to continue to believe the Court is not nakedly political. It is another thing to have watch Mitch McConnell for the past decade and not recognize what would happen.

Posted by Howard Wasserman on June 10, 2021 at 11:52 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink


Lucas Powe in "The Warren Court and American Politics" references a change in practice during the Warren Court to better space out opinions to help the media.

Rick Hasen and others has also referenced how the Supreme Court is let's say "back loading" so many opinions this term. I am not sure, but it seems a bit worse this time. That is, even this late, the continual dropping of relatively less controversial opinions in one or two opinion days. One law professor said that there were eleven one opinion days this term so far.

Not a scholar here, but I find this troubling, and it is also more trouble for court reporters who are trying to clearly and promptly explain to the general public. If Breyer et. al. are serious about civics education, which to be fair they seem to be, it is not a great policy to help the general public understand cases to bring out so many all at once.

I also generally agree with Prof. Hansen on the last point. Breyer retiring now basically would help promote what he himself allegedly thinks is important. It will help, somewhat, to lower the temperature a bit if he retires now. The beginning of a presidential term is also a reasonable time to retire generally speaking, especially for members there a long time. Not doing so will (we've been down this road, Stephen) threaten a messy result, that again, Breyer himself should want to avoid.

Posted by: Joe | Jun 10, 2021 1:45:33 PM

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