Constitutional Law

Trying to read Heller tea leaves

Over at the Volokh Conspiracy they're trying read the tea leaves.

Court's custom is to ensure each Justice gets to write at least one majority opinion from each "sitting," i.e., a month worth of oral arguments. Of the March sitting, coming into today, only Souter and Scalia had not had that privilege, and today Souter got one, leaving only Scalia. Maybe Heller will be his, meaning Heller clearly wins. I'd add that that also means the division of votes was firm from the beginning. Scalia's outspoken style is less likely to draw additional Justices in than is, for example, that of CJ Roberts. If there was a chance to pull an additional vote in from whoever is dissenting or concurring, it seems likely to me that Roberts would have kept the opinion for himself.

Gene Volokh wonders, if Scalia does get the opinion, whether a dissent he filed Thursday might presage a point he'd make -- that he (being a textualist) declines to go with the concept that a right's wording may be disregarded if doing so would serve its purpose. I.e., that purpose cannot overcome wording. I think that may be a bit of a stretch.

Full post as published by Of Arms and the Law on June 23, 2008 (boomark / email).