Voucher Opinion--Scalia or Kennedy??

[James Henderson]

We too have engaged in the subtle art of opinion
authorship counting.  I lost heart for it following
the indefensibly anticonstitutional decision of the
Court in Hill v. Colorado, but a colleague in the
office maintains a meticulous chart.  Like Rick's
colleague, he predicts Scalia/Kennedy, but unlike
Rick, and keeping in mind David Petron's shared
observation about the session in which Stevens had no
opinion for the Court, he has surmised that Scalia is
more likely to be announcing the opinion (and writing
the plurality or majority) than Kennedy.  His best
guesstimate is that Stevens wrote himself out of a
majority in McKune, Kennedy ended up carrying the
responsibility for the project, and the two opinions
Stevens has from the Zelman session include his normal
allotment of one, plus one extra one for the switch in
McKune.

Isn't speculation fun?

On a related topic, I suggested to my colleague that
someone should discuss our calculations in a public
setting, in order to help demystify the workings of an
already too obscure body.  He recoiled in horror
because he feared that if the Court were aware of its
somewhat predictable behavior, it might influence it.
Thoughts?

Jim Henderson
Senior Counsel
ACLJ
--- "David S. Petron" <dpetron at ND.EDU> wrote:
> Since I almost can't help joining in the
> speculation, let me offer this
> additional observation.
>
> 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.
>
> David Petron
> (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
> >write.
> >
> >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:
> >
> >Rehnquist  1
> >Stevens    2
> >O'Connor   1
> >Scalia     0
> >Kennedy    0
> >Souter     1
> >Thomas     1
> >Ginsburg   1
> >Breyer     2
> >
> >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
> >the assignment.
> >
> >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
> >
> >__________________________________________________
> >Do You Yahoo!?
> >Yahoo! - Official partner of 2002 FIFA World Cup
> >http://fifaworldcup.yahoo.com


__________________________________________________
Do You Yahoo!?
Yahoo! - Official partner of 2002 FIFA World Cup
http://fifaworldcup.yahoo.com