This pattern holds true with surprising frequency. Oddly enough, there were two months during OT 09 where the Court didn’t follow its usual opinion distribution. During November, when the Court heard eleven cases, Justice Stevens did not author any majority opinions.

During December, when the Court heard nine opinions, Justice Kennedy did not author any majority opinions and Justice Ginsburg authored two.

There are strategic reasons for this anomaly. One scenario occurs when the Court hears only 9 cases and one justice is integral to bringing a majority together in two cases. For example, if Justice Kennedy was the decisive vote in two 5-4 majority and the senior justices in both (perhaps even the same justice) determines that it is important for Justice Kennedy to author both, there would likely be no interference from the other members of the Court.

Unfortunately, that scenario isn’t likely to have played out here. In November, there were five 9-0 or 8-0 opinions and Justice Stevens joined four of them in full. Two of the ones that Justice Stevens joined in full – Beard v. Kindler and Kucana v. Holder – were written by authors who had already been given another assignment for the month. At least in theory, either case could have been given to Justice Stevens without impacting the lineup of the unanimous decision. Justice Stevens dissented in only two cases out of the nine decided during November.

During December, Justice Ginsburg had two majority opinions and Justice Kennedy had none. Justice Kennedy dissented in an unusually high number opinions that month – four out of nine – but there were several instances where he joined a majority opinion in full. In Florida v. Powell, for example, Justice Kennedy joined Justice Ginsburg 7-2 majority opinion and could have authored the majority to give each justice exactly one majority opinion for the month.

The odd distribution from the November and December compounded to create an imbalance going into the holiday season. That imbalanced lasted throughout the term, as you can see in the chart below.

Compare that to the distribution after December and the total distribution for OT 08. [I've included Citizens United as a OT08 case]

There are a variety of conspiracy theories about why an aberration like this could occur. During OT99, for example, Justice Stevens didn’t author any opinions from the April session because – as the story goes – he lost the majority in Boy Scouts of America v. Dale to Chief Justice Rehnquist when Justice Kennedy flipped sides while opinions were being drafted. If that happened here, it might explain why Justice Kennedy didn’t author any opinions in December. Honestly though, from the set of cases in November and December, I can’t see where that would have happened. The fact that Justice Kennedy didn’t author any opinions in December also tells me that the court already knew something was awry when it distributed opinions for that month. My guess is that the December distribution was a reaction to something that had happened after the Court’s last conference in November.

The obvious reason, and the one discussed by Tom Goldstein here, is that Justice Stevens lost the majority opinion to Justice Kennedy somewhere in the drafting process. The fact that Justice Stevens’ concurring opinion reads like a majority opinion supports this theory.

At the beginning of Section I of his opinion, Justice Stevens writes:

Although the Court provides a brief statement of facts, a more complete explication may be useful for those unfamiliar with petitioners’ patent application and this case’s procedural history.

That seems like a convenient excuse to use the same statement of facts that was originally drafted for Section I of the majority opinion.

Related posts

• Supreme Introductions (December 20, 2008)
• OT 08 Term Statistics (February 26, 2009)
• Kelo Turns Three Today (June 23, 2008)

Barring an incredibly surprising turn of events, Justice Kennedy will be writing the majority opinion in that case.

Related posts

• Upcoming Cases to Watch (June 17, 2009)
• The Odd Opinion Distribution of OT 09 (July 6, 2010)
• Supreme Introductions (December 20, 2008)

The Roberts Court’s trend towards releasing opinions late in the term is well-documented and commentators should not be surprised to see only four opinions heading into the winter break. The biggest counter to this argument is the fact that the Roberts Court has been making an effort to load the docket with cases during the first few months in an effort to soften the inevitable end-of-term rush to finish opinions. I’m not sure packing cases early would have a huge impact on decisions being released before Christmas although I do think there could be an increasingly large number of opinions released during February and March.

With all of that in mind though, Citizens United should be considered late. Capitol Hill is waiting for the decision and campaigns around the country are treading lightly in anticipation of the option. The Supreme Court’s delay will only extend the period of uncertainty.

Related posts

• Which Justices Write The Most 9-0 Opinions? 5-4 Opinions? (February 27, 2009)
• Thoughts on the Citizens United Delay (December 15, 2009)
• Supreme Introductions (December 20, 2008)

Several commentators, most notably John Elwood on Volokh Conspiracy and Tony Mauro for the Legal Times, have considered the possible reasons and consequences of the Court’s rather delinquent decision. earlier this year I took a look at the cases from OT07 that took longer-than-expected and the stats generally support what the pundits have said. The average number of days for an opinion is about 92. The longest opinions from OT07 were 202 and 232 days, respectively. US v. Williams took 202 days, split 7-2, and had three opinions. US v. Santos took 232 days, split 5-4, and had four opinions.

The case with the greatest number of opinions was Department of Revenue of KY v. Davis. It took 197 days, split 7-2, and had seven opinions (Souter(m), Stevens(c), Roberts(c), Scalia(c), Thomas(c), Kennedy(d), Alito(d)).

On the other hand, McConnell v. FEC took about 92 days, split 5-2, and had three majority opinions, three concurrences, and two dissenting opinions. Notably, the decision in McConnell was released on December 10, 2007, relatively early in the year for an opinion and not even on the last day for opinions before the break (another opinion was released on December 15)!

In my opinions, the number suggest that the Citizens United decision will be as far reaching as people expect but I think there will be far less division than the McConnell opinions. The Court could probably churn out an opinion in a week if each of the Justices was to simply write an opinion for himself or herself and the Court issue nine opinions. In an effort to fulfill some of his nomination pledges, the Chief Justice may be placing a greater emphasis on writing a majority opinion (that I expect he will write) that can drag along a majority for the crux of his argument.

Related posts

• Supreme Introductions (December 20, 2008)
• Which Justices Write The Most 9-0 Opinions? 5-4 Opinions? (February 27, 2009)
• Which Justice Is The Most Talkative? (November 8, 2007)

You can also find a video taken at the loosely termed “photo shoot” here. I should note that the Court released a few different photos from the shoot and in all of them, Justice Alito looks determined to avoid having his soul captured by the liberal photograph-making devices being pointed at him.

Supreme Court class photos have a tradition of capturing bizarre moments. One of my favorites is the class photo from 1986, taken after Chief Justice Rehnquist’s promotion and Justice Scalia’s arrival on the bench. Thurgood Marshall gives the camera his best smile, but he seems surprised to still be on the court.

Another all-time favorite is this below, taken in 1925. Note that the two Justices standing on the left, Justices Stanford and Sutherland, look nearly identical. The Justices standing on the right also look like they could be related.

Related posts

• Upcoming Cases to Watch (June 17, 2009)
• Two More Pieces of Triva about Yesterday’s Arguments (September 10, 2009)
• C-SPAN Releases excerpts from Supreme Court Interviews (September 4, 2009)

The Court granted review in McDonald v. City of Chicago, a case decided by the Seventh Circuit in early-June. SCOTUSblog has a collection of cert. stage briefs that you can access here and David Kopel has an intersting collection of background reading available on Volokh Conspiracy here. Notably, well-regarded conservative judges Frank Easterbrok and Richard Posner both ruled against incorporation in this case.

Related posts

• Supreme Introductions (December 20, 2008)
• Supreme Court to Promptly Release DC v. Heller Oral Arguments (March 6, 2008)
• Supreme Court Extends DC’s Argument Time in Heller (February 25, 2008)

In fact, the Washington Post and Above the Law are now reporting that General Kagan chose a black suit with a light blue blouse with which to disgrace the Office of the Solicitor General. ATL confirmed the choice of attire with General Kagan herself but was unable to get her to confess her choice of designer.

According to the Post, the DOJ official policy still requires men to wear the morning coat but now makes the traditional attire optional for women.

Related posts

• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)
• Two More Pieces of Triva about Yesterday’s Arguments (September 10, 2009)
• Obama Selects Kagan to be Solicitor General (January 5, 2009)

General Kagan opted not to wear the traditional grey morning coat that male Solicitors General wear. Instead, according to the WSJ Law Blog, she wore a blue pants suit. Of course, the writing was on the wall.

Additionally, the the formal collar worn by Sotomayor and gifted to her by Justice Ginsburg, is called a jabot (pronounced zha-BO). In their recent interviews with C-SPAN, both Justice Ginsburg and Justice O’Connor expressed a lot of frustration at their initial difficulty in obtaining proper judicial couture, so I suspect this gift was much more meaningful than we would typically assume.

I mentioned some of this stuff on the DailyWrit’s Twitter, but I’m getting a little lazy about posting these factoids with all deliberate speed. My apologies.

Related posts

• Upcoming Cases to Watch (June 17, 2009)
• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)
• Kagan to Split Time with Waxman in Citizens United (July 24, 2009)

By contrast, when Justice Alito first sat on the Court on February 21, 2006 in Rapanos v. United States and he asked a single question. His only question appeared on page 5.

Similarly, Justice Sotomayor spoke only four times today during her first oral argument on the Supreme Court. Her first question came on page 24 and she went back and forth with former Solicitor General Ted Olson with a few lengthy questions.

Related posts

• Oral Argument Stats Posted (December 12, 2008)
• Which Justice Is The Most Talkative? (November 8, 2007)
• Supreme Introductions (December 20, 2008)

Solicitor General Kagan did a fantastic job for her first oral argument. Her position was a difficult one and the Justices who disagree with her position certainly held no punches. Chief Justice Roberts, in particular, went after her position and commented on some aspects of the SG’s uncomfortably paternalistic position. Admittedly though, this was an interest set of arguments because each Justice seemed more clear than usual in the position they would be taking.

I’d recommend this set of oral arguments to anyone with an interest in the Court. The parties made some pretty interesting, well-laid out claims. As soon as we get the transcript I’m sure the (laugher.) count will be very high. You can find an audio recording from c-span here.

Related posts

• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)
• Kagan May Not Argue Until OT09 (April 14, 2009)
• Final Argument Transcript of the Term – Northwest Austin v. Holder (April 29, 2009)

The video are interesting, as moving-pictures of the Justices always are for this blogger, but don’t really reveal anything particularly scandalous. You can hear about Justice O’Connor and Justice Ginsburg grappling with the always-important issue of proper Judicial attire, but for the most part the Justices stick to the script. The full interviews, which will be broadcast in batches throughout the first week in October, should provide some interesting insight into the Court’s functions at this critical time in it’s history. The video published yesterday features interviews from Chief Justice Roberts, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice, Breyer, Justice Alito, and Justice O’Connor.

Related posts

• Upcoming Cases to Watch (June 17, 2009)
• Two More Pieces of Triva about Yesterday’s Arguments (September 10, 2009)
• A Walk Down Memory Lane (October 1, 2009)

Related posts

• Advocate Scorecard for OT00-Present (August 2, 2009)
• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)
• Profile: Theodore B. Olson (January 11, 2009)

If the motion is granted, the division would create for a very interesting dynamic for the Court’s special September 9 sitting.

30 minutes – Ted Olson
20 minutes – Elena Kagan
10 minutes – Seth Waxman

Frequent readers of this blog should have the CVs of each of those superstars memorized. If for some reason you can’t recall the most juicy details about each of these individuals, I’ll recap them quickly:

Ted Olson is currently the co-chair of the Appellate and Constitutional Law Group at Gibson, Dunn & Crutcher (one of his co-chairs is conservative starlet Miguel Estrada). He argued for then-Governor Bush in Bush v. Gore and later served as SG for the first part of the Bush administration. He is possibly the most influential ‘conservative’ lawyer in the insulated world of the Supreme Court bar. He was also a member of the murder boards that prepped Justice Alito for his confirmation hearing. I did a profile on him a few months ago – you can find it here. He has argued 55 cases in the Supreme Court, placing him in the top 5 currently practicing attorneys.

Seth Waxman is the chair of the Appellate and Supreme Court Litigation Practice Group at Wilmer Hale. He was SG for the second part of the Clinton Administration, Waxman is one of the more notable ‘liberal’ attorneys on the Supreme Court bar. He has argued, usually successfully, in some of the most important cases of the last decade: Boumediene, Roper, McConnell v. FEC, US v. Morrison, Saenz v. Roe, Clinton v. City of New York, Reno v. ACLU. He has argued 50-55 cases in the Supreme Court.

Elena Kagan is the Solicitor General of the United States. She was confirmed a few months ago and this will be, by all accounts, her first argument before any court. Not a bad debut.

Oddly enough, Olson and Waxman argued on the same side of this case in 2003 in McConnell v. FEC. At the time, Olson was SG and argued to uphold the campaign finance regime while Waxman represented Senators McCain and Feingold, the same position he is in today. Tony Mauro has an interesting article at the BLT which discusses whether or not there is an ethical concern with Olson seemingly reversing his position on the issue.

If I were to name the top five Supreme Court advocates right now, I’d have to include both Olson and Waxman on that list. Olson argued before the Court six times during OT08 and Waxman argued twice. To top everything off, it will also be Judge Sotomayor’s first time sitting with the Supreme Court!

I’m hoping to head to Washington for arguments in this case. I haven’t finalized anything yet, but if anyone else is planning to go to the arguments, let me know!

Related posts

• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)
• The Weeks Ahead (April 12, 2009)
• Kagan May Not Argue Until OT09 (April 14, 2009)

I’ve updated the 2008 Term Case Index, which you can always find at the top of the page or here.

I’ve also posted a Term Count spreadsheet that features individual opinion authors and length of time stats.

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…And a reformatted version of the same chart:

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I’ve also uploaded a final-ish version of the Advocate Scorecard. For government attorneys, I included everyone who argued at least once from the Office of the Solicitor General and did not include any state-level officials except Barbara G. Underwood, who served as acting SG for the beginning of the Bush 43 Administration and Principle Deputy under Seth Waxman. I also put (AC) beside their case name if they argued as amicus curiae in the case. That usually means they split time with the party they supported and argued for 10-15 minutes. In some instances they argued in addition to full arguments by the parties (Edwin Kneedler arguing a 30-30-10 arrangement in Ricci) although in one instance they argued as amicus but actually argued the full 30-minutes in the place of a party (William Jay arguing in Harbison)

For private attorneys, I included any advocates who argued more than twice (if I missed any please correct me) and a few advocates who only argued once but are notable for other reasons (Jay Sekulow, Pamela Karlan, Andrew Frey, Kenneth Starr, and Kathleen Sullivan). Nearly all of the private attorneys will sound familiar to you if you’ve read this site over the last few months. Private attorneys don’t often argue as amicus and, although it does happen (Pac. Bell), none of the private attorneys I listed had argued as amicus in any case.

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Enjoy!

Related posts

• Time to Update the Resume (April 29, 2009)
• The Weeks Ahead (April 12, 2009)
• Advocate Scorecard for OT00-Present (August 2, 2009)

The Court will hear rearguments on September 9. Obviously, that means it will happen during OT 08 and a decision will be rendered before the start of oral arguments in October. OT 08 is not finished and, therefore, I can’t publish any truly final statistics until the end of September.

Related posts

• The Weeks Ahead (April 12, 2009)
• Supreme Court Oral Argument Tussle Gets Serious (October 11, 2008)
• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)

You can also appreciate the importance of the final three opinions, which will be released tomorrow, because 7 out of the 39 advocates (Kneedler, Stewart, Underwood, Olson, Waxman, Coleman, Meade) listed argued in one of the three cases and Malcolm Stewart actually argued in two (Citizens United and Cuomo).

I’ll have more to say about it on monday after I post the final version. Until then, enjoy:

Sample:

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Related posts

• Time to Update the Resume (April 29, 2009)
• Nearly Final Term Statistics and Advocate Scorecard (June 29, 2009)
• Advocate Scorecard for OT00-Present (August 2, 2009)

I’ve updated an up-to-date term chart for you convenience as you prepare for the final opinions of the term.

Note: Justice Kennedy has only issued 6 majority opinions. Justices Ginsburg and Alito have both issued only 7 each. My educated guess says that Justice Kennedy will author a 5-4 majority in Ricci, Justice Ginsburg with author Cuomo, and Justice Alito will author Citizens United.

Related posts

• The Upcoming Weeks (May 16, 2009)
• Walter Dellinger Discusses the End of the Term (June 22, 2009)
• Upcoming Cases to Watch (June 17, 2009)

The two opinions were written almost simultaneously and it would be difficult to imagine that each case wasn’t decided with the other in mind. In NWAMUDNO, the Court decided to punt on the most important issue, in Ricci, it will be much harder to avoid the core issues. Its hard to make any sort of prediction about what the VRA decision means for Ricci, but I think with the benefit of hindsight we will be able to compare the two opinions and come to some sort of understanding about the interplay between the two.

We first have to make some assumptions about the NWAMUDNO decision. Several scenarios may have played out in order to create the bizarrely unanimous criticism of the VRA but lets assume one of the most salacious. Justice Kennedy is initially the only Justice who wants to punt on the issue. Chief Justice Roberts shivers at the sight of a 4-4-1 opinion and decides to write the decision that would eventually be published to avoid forcing Justice Kennedy to sit down and decide the opinion “doesn’t write” and flipping to the liberal justices.

If Justice Kennedy really was the first, and still the only, Justice who truly wanted to punt, I think that would bode poorly for the city. The decision in NWAMUDNO was made only out of deference for a co-equal interpreter of the Constitution and I think the Court would not burden itself with that level of respect for a local civil service board mired in base racial politics. The court could be sending a very strong political message in Ricci about how comfortable it is with racial politics and further hint to Congress to get it’s act together.

If the Chief Justice, Justices Scalia, Kennedy, and Alito all wanted to punt on the issue and return it to Congress for further changes, the four liberal justices likely joined that opinion to send a message to Congress that they needed to change Section 5. There would have been five votes in favor of remanding regardless and the liberal justices knew a dissent from that would have been in vain.

Related posts

• Upcoming Cases to Watch (June 17, 2009)
• The Upcoming Weeks (May 16, 2009)
• State of the Docket (May 26, 2009)

With the release of three opinions today, the Court now has only seven cases left to decide. It will hand down some on Thursday and the final opinions next Monday. Of the remaining cases, the two attracting the most media attention are Safford Unified School Dist. #1 v. Redding (strip-search of a 13-year old girl) and Ricci v. DeStefano (affirmative action regarding firefighter’s promotions).

Related posts

• Released Opinion Statistics (April 29, 2009)
• Which Justices Write The Most 9-0 Opinions? 5-4 Opinions? (February 27, 2009)
• Which Justice Is The Most Talkative? (November 8, 2007)

His letter to Dahlia Lithwick and Linda Greenhouse is an interesting summary of the many issues at play in the final week of the OT08. This entry came across to me as particularly interesting:

The most important cases naturally gravitate to the end of the term because justices drafting the majority and dissenting opinions in those cases apparently feel compelled to keep revising and rewriting in response to one another’s revised counterarguments up until the final days of the term. (This explains why some of the most interesting points are often in footnotes, the preferred venue for last-minute volleys.)

We know that the most important cases usually come down in the final weeks of a term (recent exceptions would include Gonzales v. Carhart (April 18, 2007), Medellin v. Texas (March 25, 2008), Baze v. Rees (April 16, 2008)). I thought his insight into the importance of last minute footnotes was interest. Be prepared to take a crack at some footnotes in the cases that will come out later today.

Related posts

• Upcoming Cases to Watch (June 17, 2009)
• The Upcoming Weeks (May 16, 2009)
• The Final Opinions (June 27, 2009)