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Tuesday, June 27, 2006 

Alito and Marsh

While reading my copy of the Milwaukee Journal Sentinel, I noticed the AP story about the Kansas v Marsh decision. They state (and I did too in a previous post) that this was another of the Alito breaks the tie decisions. It was reargued after Justice O'Connor left the Court. But Tom Goldstein of SCOTUS makes this interesting point worth noting...
In the third reargument, Kansas v. Marsh, the retirement of Justice O'Connor seems not to have made a difference. Marsh was argued first in December, then reargued. The eventual opinion was written by Justice Thomas and Justice Alito joined the opinion. The principal dissent was written by Justice Souter. Justice Thomas ended up with no opinion from the December sitting, indicating that Marsh was the opinion he would have authored for that sitting had it not been reargued. Justice Souter wrote a majority opinion for that sitting, indicating he did not lose a majority from that sitting. So it is fair to conclude that Justice Thomas had a majority in Marsh before Justice O'Connor's retirement and retained it when Justice Alito joined the Court.
So Thomas had the majority in December, because Souter already had a majority opinion from that sitting. O'Connor would have voted the same way as Alito then. Good eye, Mr. Goldstein.

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