Why Justice Kennedy Might Still Write the Court’s Opinion in the Wisconsin Partisan Gerrymandering Case

After yesterday, the only two Justices who have not issued opinions for the Court from the October sitting, when Gill v. Whitford was argued, are Chief Justice Roberts and Justice Gorsuch.  This has given rise to speculation, including on this blog, that one of those two Justice is therefore likely to have been assigned the lead opinion in Gill. 

Since it’s hard to imagine the most junior Justice on the Court in his second year would be assigned a case as significant as Gill, that would suggest Chief Justice Roberts is holding the metaphorical pen.

On this view, Justice Kennedy is out of the picture because he was the lead author in yesterday’s fractured majority decision in the Alien Tort Statute case, Jesner v. Arab Bank.  For only two Parts of the legal analysis in his opinion is Justice Kennedy writing for a majority; the bulk of his opinion is for only a plurality of the Court, because the majority couldn’t reach agreement on these aspects of the issues.

But here’s a different speculation, which Linda Greenhouse suggested to me in conversation, based on her years of reading tea leaves about such matters:  given the sharp internal conflicts among the five-member majority in Jesner, perhaps Justice Gorsuch was initially assigned after conference the Jesner opinion. Yet the draft opinion he circulated  could not command a majority, because his position — as reflected in his long concurrence, which on this story was initially designed to be part of a majority opinion — was too extreme to garner five votes.

Instead, as drafts circulated it turned out that Justice Kennedy’s approach was able to attract five votes, at least for certain parts of the analysis.  As a result, the majority in Jesner was re-assigned to Justice Kennedy.

If that story is right, the actual assignment Justice Kennedy got out of the first sitting would be one of the two cases still outstanding, Epic Systems or Gill.  Since Chief Justice Roberts hasn’t written yet, he’s likely in the majority in one or both of those cases.  If he is in the majority in both, it’s possible to see him choosing either case for his majority opinion; Epic Systems is a major case involving procedure and access-to-the court issues that interest the Chief.  That would leave Gill for assignment to Justice Kennedy.  Or if the Chief and Justice Kennedy are on opposite sides in Gill, that would leave Kennedy to assign himself the opinion in Gill.

So perhaps Justice Kennedy could still be line to write the  lead opinion in Gill, despite his opinion yesterday in the ATS case.  Of course, Gill could fail to produce a majority opinion.



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