Voucher Opinion--Scalia or Kennedy??
David S. Petron
dpetron at ND.EDU
Fri Jun 21 14:14:45 PDT 2002
Since I almost can't help joining in the speculation, let me offer this
Up to and including the argument sitting of 2/19/02 (which included Zelman),
every Justice has written for the Court at least six times, with the exception
of Justice Scalia. Justice Scalia has authored but five opinions for the
court through the 2/19/02 sitting. (And Justice Stevens has authored seven.)
Assuming some effort to distribute the workload around evenly, this overall
distribution would suggest that Justice Scalia is writing for the Court, or at
least for a plurality, in Zelman.
Of course, similar speculation has already proven wrong this term. Based upon
the distribution of opinions for the 11/26/01 sitting, it was thought that
Justice Stevens would author the opinion of the court in McKune v. Lile, No.
00-1187 (June 10, 2002). As it turned out, Justice Kennedy wrote that
opinion, and Justice Stevens did not write for the court for any of the cases
argued on the 11/26 sitting.
(in my personal capacity)
>===== Original Message From Law & Religion issues for Law Academics
<RELIGIONLAW at LISTSERV.UCLA.EDU> =====
>A colleague of mine who is a self-proclaimed Supreme
>Court junkie, predicts that the opinion in the
>Cleveland voucher case is being written by either
>Scalia or Kennedy. The prediction is based on patterns
>of assignment of opinions. The theory is that the CJ
>tends to divide the opinion assignments evenly among
>the justices according to each monthly oral argument
>sitting. So that during one month's schedule of about
>10-12 cases, each justice will get at least one and
>not more than 2 opinions assigned to him or her to
>Zelman was argued in February. Here is how my
>colleague breaks down his prediction:
>"There were ten cases argued in February. Nine (all
>but the Cleveland case) have come down. Here is the
>breakdown of authorship for the opinions on cases
>heard in February:
>Thus, concludes my friend, it is unlikely that Stevens
>or Breyer will write for the Court in Zelman and it is
>quite likely that either Scalia or Kennedy will have
>This system provides only a good guess. And, in my
>view,even if my friend is right, Kennedy or Scalia may
>only be writing a plurality opinion and O'Connor's
>concurrence is likely to be the law of the case.
>Still, if S or K write for the plurality, there is
>little doubt that the voucher scheme will be upheld.
>I think it is quite unlikely that Scalia will be
>writing a majority opinion--he is unlikely to write
>one nuanced enough to get O'Connor to join. But maybe
>Kennedy could manage to write for a majority.
>Just kind of fun to speculate. We'll know for sure in
>a few days!!!
>Cheers, Rick Duncan
>"Do you not think an angel rides in the whirlwind and directs the storm."
> --President George W. Bush (quoting John Page)
>"When the Round Table is broken every man must follow Galahad or Mordred;
middle things are gone." -C.S. Lewis
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