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Saturday, August 17, 2024

Why randomize assignments?

I guess I should have considered this when I answered Gerard's first question, but here goes: What would be the point of randomized assignments? Of all the things Congress can try to bring the Court to heel, why would it want to do this? Is the idea that analysis and precedential effect (if not outcome in this case) might change if Justice Barrett wrote a particular opinion rather than Justice Thomas? Assuming agreement on basic principles and given the collective nature of the writing process, would the final opinion be so different?

And might there be unintended consequences? Unable to get everything he wants, Justice Alito leaves the opinion in a 5-4 and writes separately, eliminating the majority and, to the extent Marks matters, giving more power to his individual opinion without him having to do the work of maintaining a majority. Do we lose something if there is no Justice who becomes the go-to person on some issues (e.g., Ginsburg on procedure or Gorsuch on Indian law).

If it does not do much as a stand-alone change, it might be a cute addition to Sherry's plan--random assignment of that single, unsigned, unenumerated opinion. This creates further distance between individual Justices and case outcomes.

Posted by Administrators on August 17, 2024 at 06:03 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink

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