Eminent Domain

On Friday, the Washington Legal Foundation had its Supreme Court media briefing to discuss what happened on the Court during this term. SCOTUS has some great coverage here. Giving us the rundown are Supreme Court litigators Tom Goldstein, Andrew Pincus, and Miguel Estrada. If you have an hour and fifteen minutes to kill, you can watch the archived video here.

The SCOTUS post has a list of the highlights from the speeches. There are two comments that I would like to highlight. First, the issue of appeals court reversal...

The Ninth Circuit has been reversed more times (15) than the First, Third, Fourth, Fifth, Seventh, Eighth, Tenth, and D.C. Circuits combined. But, as Goldstein noted, the rate of Ninth Circuit reversals (83% or 15/18) is only slightly above the high court's overall average (75%). Conspiracy theories notwithstanding, Goldstein surmised that the high court might just be trying to tell the Ninth (and, to a lesser extent, the Sixth) that "it would be good if they followed the law."

Everyone (including me) loves to beat up on the Ninth. While their reversal average is not that much greater than the other circuits, the sheer number of reversals tends to make everyone lose sight of that. When you hear case after case from the Ninth being reversed, it's hard to remove the thought from your head that they are totally out there.

The second issue I'd like to point out is the authorship of forthcoming opinions...

Based on the breakdown opinion authorship, Goldstein predicted, and Estrada agreed, that Stevens will write Hamdan.

They are probably correct. Roberts had to recuse himself in that case, making Stevens the senior Justice and therefore the one who assigns the opinion. As Goldstein points out, Stevens has not written an opinion from the March sitting of the Court yet. There is no reason for him to not take one of the biggest cases of the term. It will probably be 5-3, with Scalia, Thomas, and Alito dissenting. We'll know if this is true by the end of the week.