Replies

There are three cases whose opinions have not been released, one from the February sitting (Arizona State Legislature v. Arizona Independent Redistricting Commission), one from the March sitting (Utility Air, the EPA case) and one from the April sitting (Glossip, the lethal-injection case). http://www.scotusblog.com/statistics/ As you can see a little lower at the linked page, for the sittings in which all opinions are out, each Justice has written one Opinion of the Court (when there were at least nine cases, of course) and no Justice has written more than two opinions per sitting. That’s by design, so that theworkload is divided equitably. (It is also why liberal Justices with very little seniority are assigned many of the 9-0 and 8-1 cases.)

Because none of the majority opinions from the March sitting that have been released so far have been authored by Scalia, we know with 99% certainty that he wrote the Opinion of the Court for Utility Air. Could someone else have written it? Sure, if after the hearing there were five or more Justices—one of whom was Scalia—in favor of overturning the EPA rules, and Robets assigned Scalia (or, if Roberts was in the majority, Scalia assigned to himself) the opinion, but then one of two things happened: (i) enough Justices switched to uphold the regulations and Scalia’s majority opinion became a dissent or (ii) a majority still believes that the EPA rules should be struck down, but not enough Justices agree with the reasoning in Scalia’s opinion and thus Scalia’s opinion becomes a concurrence in the judgment (and a different opinion becomes the majority or plurality opinion). Tha first scenario is what occurred during the 2013 Obamacare case, where Roberts switched fairly late in the process; the second is what analysts believe (and I agree with them) happened in Keery v. Din in the February sitting, where Kennedy had been selected to write the Opinion of the Court for a 5-4 majority but only one other Justice signed on to hiis opinion, and then Scalia’s opinion, with two other Justices signing on, became the judgment of the Court.

Which brings us to the February sitting. There were 9 cases in the sitting, and 8 decisions have been announced, with each of Roberts, Thomas, Breyer, Alito, Sotomayor and Kagan being the authors of one majority opinion and Scalia being the author of two judgments of the Court (one of which was the plurality opinion in Kerry v. Din). Given that almost certainly each Justice was assigned initially the majority opinion for one case, and that two Justices (Kennedy and Ginsburg) have not authored any majority opinions for the cases during such sitting, all the evidence points to Kennedy initially having been assigned Kerry v. Din but having lost his majority (albeit not losing the judgment) and Ginsburg initialy being assigned the opinion in Arzona State Legislature v. Arizona Independent Redistricting Commission. Given Ginsburg knee-jerk liberalism and distespect for the Constitution’s text, I am fairly certain that she favors interlreting “legislature” as meaning “any authority authorized by the state” iwhen such term is used in the Constitution’s Elections Clause. If I am correct, then there were at least 5 Justices willing to allow the AZ Redistricting Commission to draw congressional district lines despite it not having been created by the state legislature. And, unless someone changed his (or her—HA!) mind since February or March (whenever tbe post-sitting conference was held), the AZ Legislature will lose its appeal. This really pisses me off.

As for the lethal-injection case, there are several Justices that haven’t authored opinions from the April sitting (Ginsburg, Alito, Sotomayor and Kagan), but I think tbat Alito wrote the opinion because I don’t think that tbere are five votes in SCOTUS to strike down the use of lethal injections in executions.

Interestingly enough, Bush could have moved the court to the right simply by sticking his original plan -- having Roberts replace O'Connor as associate justice. After Rehnquist's death, Bush could have elevated Thomas to CJ. Roberts would have certainly been more conservative than O'Connor, and Thomas would have continued Rehnquist's unshakeable conservative leadership. Of course, knowing what we know now, Roberts would be out of the question after his Obamacare decisions.

I'm surprised we don't choose Justices the way we choose Presidents -- elevate STATE supreme court justices with great track records on constitional questions instead of elevating career federal judges who live in the beltway.

The fact a judge claims their "judicial philosophy" is "originalism" or whatever, has proven to be effectively useless. Most of the Burger court Republicans inventing new "rights" out of thin air were supposedly "strict constructionsts" when they were placed on the court.