Legal Commentary

(Continuing) Speculation About Authorship of Remaining October Supreme Court decisions

By John Elwood

With today?s decision in Padilla v. Kentucky, there are only three cases undecided from the Supreme Court?s 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); and Perdue v. Kenny 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). And there are two Justices remaining without a majority opinion from that sitting: the Chief and Justice Kennedy.

In light of Justice Steven?s (sort of) anticipated authorship of Padilla, I?ll stick with the predicted authorships of my last post on the subject: Justice Kennedy will be writing an opinion invalidating the law in Stevens, the Chief will write Buono, and Justice Ginsburg will handle Kenny A (unless respondents lose, in which case Alito may get the nod).  Which means either the Chief is performing a Rehnquistian damage-limitation role and holding his nose to write an opinion that he doesn?t really agree with (see, e.g., Dickerson v. United States), or the government has some good news coming to it.  (Of course, that?s assuming there hasn?t be a change of votes post-conference.)

 But again, that opinion is worth slightly less than you paid for it.

Full post as published by The Volokh Conspiracy on March 31, 2010 (boomark / email).