Legal Commentary

Supreme Court?s October Sitting: Speculation About Authorship of Remaining Opinions

By John Elwood

With today?s decision in Bloate (pronounced ?blow-tay?) v. United States, there are only four cases undecided from the October sitting: United States v. Stevens, 08?769 (the First Amendment challenge to the federal prohibition on depictions of animal cruelty); Salazar v. Buono, 08?472 (involving an Establishment Clause challenge to a cross used in a war memorial that Congress later transferred to a private entity); Jose ?Not that One? Padilla v. Commonwealth of Kentucky, 08?651 (involving whether the Sixth Amendment right to effective assistance of counsel requires a criminal defense attorney to advise a noncitizen client that pleading guilty will trigger mandatory deportation and whether misadvice amounts to ineffective assitance and warrants setting aside the guilty plea); and Perdue v. Kenny ?No, Not G.? A., 08?970 (involving whether a reasonable attorney?s fee award under a federal fee-shifting statute ever can be enhanced based solely on the quality of performance and results obtained when those factors already are included in the lodestar calculation).

 There are three Justices who have had no opinions yet from the October sitting: the Chief, Justice Stevens, and Justice Kennedy.  Thus, unless the outcome of a case has flipped since the Justices voted, each of them will write a majority opinion in one of the four cases.  In addition, Justices Ginsburg, Alito, and Sotomayor each have only one majority opinion from the sitting, and thus one of them may wind up with the fourth opinion.  (The Chief, Stevens, or Kennedy might also have it, but I think they?d be unlikely to take a second opinion if their first opinion is a fairly controversial one that will involve responding to dissents.) 

It?s impossible to know who will be doing what, but where?s the fun in not engaging in rank speculation?  I suspect that Justice Kennedy, the Free Speech maven, will have the majority opinion in Stevens, unless Justice Stevens (who is expected to retire this Term and thus might be seeking to have a few extra plum assignments) gets it.  I suspect the Chief and Stevens will get Buono and Padilla, and note that I?m not saying ?respectively? because I have no idea who will get what.  And I suspect that Justice Ginsburg (who loves all things having to do with procedure, and is very industrious to boot) will announce Perdue while we all hear insufferable soft jazz playing in our heads. 

But that W.A.G. is worth exactly how much you paid for it?as a wise man once said, ?nothing?s harder to predict than the future.?  Tell us what you predict for the remaining October opinions in the comments.

Full post as published by The Volokh Conspiracy on March 08, 2010 (boomark / email).