Tasty Rumor/Speculation: Scalia Writing the Majority Opinion on DC Guns Case

I am having difficulty comprehending how the meager facts here point to such a conclusion, but hell, I'll play.

It does look exceptionally likely that Justice Scalia is writing the principal opinion for the Court in Heller – the D.C. guns case. That is the only opinion remaining from the sitting and he is the only member of the Court not to have written a majority opinion from the sitting.

So? If he's in the minority, he doesn't get to write a majority opinion, even if his considerable talents have been underutilized by the liberal Kennedy Court (let's call it what it is) thusfar.

Allah asks:

Why would Roberts, who’s presumably in the majority here, assign an opinion this momentous to Scalia instead of to himself? Is it just an act of deference on his part to a justice who may care more about this issue than he does? Is he trying to leverage Scalia’s rhetorical skills, knowing that this is going to be pored over like few other opinions in the last 10 years?

It's routine for the chief justice to assign opinions to other judges. It doesn't mean anything, necessarily, thought it might mean a little. That alte kacher Stevens was in the majority for the Boumediene decision, and, as senior justice in the majority, had the prerogative of assigning the opinion to anyone in the majority, including himself. He chose Kennedy, which doesn't really mean much. Tactically, I guess, he assigned it to the closest thing to a conservative so that liberals could (as they like to) say, "Even conservative Justice Kennedy agrees, and he wrote the opinion!" Which is like saying "Even conservative Andrew Sullivan wants to have Barack Obama's babies."

Roberts is supposed to spread the work around, and also assign cases to the justice he thinks would do the best job at the opinion. I don't think there's much question that Scalia is among the most talented, trenchant, and logical of opinion-writers. If there's a particular reason for assigning it to Scalia, it's because you know the sort of opinion Scalia's going to write: Punchy, direct, and forceful. Scalia is also a past-master at his own theory of jurisprudence -- which involves deciphering, based on history, not just what the words of the Constitution may mean but what they did commonly mean back in 1789-ish, which is the whole shebang of this particular decision.

When you want an opinion explaining how "contemporaneous norms" of jursiprudence, shaped by the authority of European courts and our "evolving" conceptions of the fairness and equality, actually explain what Americans meant when drafting their Constitution back in the eighteenth century, you assign an opinion to Anthony Kennedy. When you want an opinion to explore what people actually intended and believed they were writing in the eighteenth century, you assign an opinion to Scalia.

An unrelated anecdote: Chief Justice Warren Burger frequently found himself in the minority in the liberal-dominated Brennan/Marshall court. So he often changed his vote to vote with the liberal majority, and then, having now grabbed the prerogative of assigning the opinion writing to any judge, assigned the opinion to himself. And then, while technically holding as the majority wished, both in terms of opinion and actual result, he attempted through his writing to minimize the decision to the extent possible so that it was more limited than the liberal majority desired. He also stuck in word choices designed to undermine the whole opinion.

That tactic didn't always work, because the liberals would group together to form a majority concurrence of five or more justices which would basically say, "We go far beyond what is announced in the supposedly-controlling main opinion, and since we have five votes for this expansive liberal opinion, this shit right here is the real majority opinion; ignore that other one."

Still, he tried.

Idiot liberal law clerks were fond of asking "Is Burger stupid or evil?" Which is a great compliment coming from such soft-headed dweebs.

Correction: I started this post off by saying I didn't think Roberts' assignment of the opinion to Scalia meant much at all (assuming he's so assigned it). In the process of writing I figured out, Hey, it actually does mean something, probably.

posted by Ace at 04:23 PM

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