Who Has PBA?
With Justice Alito authoring the opinion in the Whorton case, some concerns have been raised about which Justice will be writing the majority opinion in the partial birth abortion cases. There has been a little discussion about it in the comments on Confirm Them. It's fairly easy to predict which Justice is writing if you have the right information at the right time. The workloads have been traditionally balanced among the Justices (at least as far as the majorities will allow them to be). Generally, each Justice will get one majority opinion assignment during each sitting.
Making use of the calendar for the October 30th Session and the list of opinions handed down, I sketched out a "match the opinion to the Justice" chart on a sheet of paper. Each Justice has written a majority opinion for that sitting except Kennedy and Souter (there was one per curiam opinion also). The only opinions left are James v US (defining a "violent felony" under federal law), Environmental Defense v Duke Energy (a Clean Air Act case about proper venue and the definition of... z z z z....), and the twin powerhouse of Gonzales v Carhart and Gonzales v Planned Parenthood (the constitutionality of the Partial Birth Abortion Ban Act).
So who has PBA? Kennedy. Regardless of how you think it will come out, it's gotta be Kennedy. If he stuck to his guns (and his vigorous dissent in Stenberg v Carhart), then he is writing for a five Justice majority (Roberts, Scalia, Kennedy, Thomas, Alito) upholding the ban. Roberts would have assigned Kennedy the opinion to keep his vote. Strategic opinion assignment has been a common practice in the past. The best way to keep someone's vote if he/she is squishy on the case is to let them write it. Even if you think that Kennedy has double crossed conservatives again, he's still got the opinion for the very same reasons. Stevens (the senior liberal Justice) would have assigning authority for the other potential block of five. He'd give it to Kennedy to keep his vote as well.
My prediction right now is Kennedy writes, ban is upheld. Watch me be totally wrong and look stupid.
Making use of the calendar for the October 30th Session and the list of opinions handed down, I sketched out a "match the opinion to the Justice" chart on a sheet of paper. Each Justice has written a majority opinion for that sitting except Kennedy and Souter (there was one per curiam opinion also). The only opinions left are James v US (defining a "violent felony" under federal law), Environmental Defense v Duke Energy (a Clean Air Act case about proper venue and the definition of... z z z z....), and the twin powerhouse of Gonzales v Carhart and Gonzales v Planned Parenthood (the constitutionality of the Partial Birth Abortion Ban Act).
So who has PBA? Kennedy. Regardless of how you think it will come out, it's gotta be Kennedy. If he stuck to his guns (and his vigorous dissent in Stenberg v Carhart), then he is writing for a five Justice majority (Roberts, Scalia, Kennedy, Thomas, Alito) upholding the ban. Roberts would have assigned Kennedy the opinion to keep his vote. Strategic opinion assignment has been a common practice in the past. The best way to keep someone's vote if he/she is squishy on the case is to let them write it. Even if you think that Kennedy has double crossed conservatives again, he's still got the opinion for the very same reasons. Stevens (the senior liberal Justice) would have assigning authority for the other potential block of five. He'd give it to Kennedy to keep his vote as well.
My prediction right now is Kennedy writes, ban is upheld. Watch me be totally wrong and look stupid.
