Over at Faculty Lounge, Eric Muller has a post on Justice Sotomayor’s debut opinion in Mohawk Industries, Inc. v. Carpenter, noting Justice Thomas’s concurrence in part and in the judgment, and stating that “The Rehnquist Court tradition was to give a new Justice a unanimous opinion for his or her first assignment.” And he notes a Washington Post article covering Justice Alito’s first opinion stating: “Following Supreme Court tradition for new justices, Chief Justice John G. Roberts Jr. assigned Alito a unanimous opinion as his first.”
I’ve never spoken to any of the Justices about whether there is such a norm. It appears to me that the debut opinions for six of the current Members of the Court were unanimous (as are many of the Court’s opinions, just under 33% last Term), but the Court’s practice has not been uniform, even during the time of the Rehnquist Court. As noted by Adam Steinman at Concurring Opinions, Justice O’Connor wrote a concurrence to, and Justice Scalia wrote a dissent from, Justice Breyer’s first opinion. See Allied-Bruce Terminix v. Dobson, 513 U.S. 265 (1995). In addition to that, Justice Thomas, joined by Justices O’Connor and Kennedy, dissented from Justice Ginsburg’s first opinion. See John Hancock Mut. Life Ins. Co. v. Harris Trust, 510 U.S. 86 (1993).
If there were any such tradition on the Burger Court, there were definitely exceptions. Justice Marshall (joined by Justices Douglas and Brennan) dissented from then-Justice Rehnquist’s first opinion, see Schneble v. Florida, 405 U.S. 427 (1972), and Justices Douglas and Marshall (joined by Brennan) dissented from Justice Blackmun’s first opinion, see Wyman v. James, 400 U.S. 309 (1971). Both Justice Marshall and Justice Blackmun (joined by Justice White) wrote dissents to what I believe is Justice Powell’s first opinion, see Commissioner v. First Security Bank, 405 U.S. 394 (1972).
Andy McGill says:
Perhaps the tradition is assigning a new Justice a non-controversial opinion. Justice Sotomayer’s first decision was 9-0 with a partial concurrence. That hardly makes it a controversial decision. And in any event, the Justices wouldn’t want to wait too long to have a new Justice write an opinion. So maybe the tradition is to assign the least controversial decision from the first group.
December 10, 2009, 2:07 pmOrin Kerr says:
I’ve generally understood the tradition to be a preference for giving a new Justice an easy case — easy in the case of a discrete question with a clear majority. That way the newbie can learn the ropes without having to worry about getting to five, waiting a long time for dissents, etc.
December 10, 2009, 2:33 pmMartinned says:
If that’s the case, why not give Sotomayor Ginsburg’s Railway Labour case, which was announced on the same day 9-0 without any concurrences or dissents?
December 10, 2009, 2:37 pmOrin Kerr says:
Perhaps because the Railway Labor case is the kind of hypertechnical procedural case that Justice Ginsburg loves.
December 10, 2009, 2:52 pmMartinned says:
:-)
I suppose that also explains why no one was interested in writing separately on that one…
December 10, 2009, 2:59 pmCrazyTrain says:
Orin: you are clearly misinformed. Justice Ginsburg has no interest in such issues — the Chief Justice gave her the case to keep the important cases away from her. Justice Ginsburg is a judicial activist uninterested in the actual tehcnicalities of the law, but in subordinating the clear text of the constitution and laws of the United States to her own personal judeo/communist, anti-christmas, islamofascist, pro-abortion, and pro-homosexual views.
December 10, 2009, 3:13 pmtroll_dc2 says:
This comment is meant as a joke, right? For one thing, the case was not trivial. It addressed the endemic confusion over what is jurisdictional and what is not, and it had to deal with the Seventh Circuit’s improper leap to basing a decision on the Constitution. For another, Justice Ginsburg has a great deal of interest in matters of jurisdiction and procedure. She probably can go technical as well as any of her colleagues. Was she given this case to keep her away from some of the other ones? I have no idea, and neither do you.
December 10, 2009, 4:07 pmCrazyTrain says:
Yes. Joke.
December 10, 2009, 4:27 pmTweets that mention The Volokh Conspiracy » Blog Archive » A Tradition Of Unanimity For Debut Supreme Court Opinions? -- Topsy.com says:
[...] This post was mentioned on Twitter by Supreme Court, Eugene Volokh. Eugene Volokh said: A Tradition Of Unanimity For Debut Supreme Court Opinions?: Over at Faculty Lounge, Eric Muller has a post on J.. http://bit.ly/5uj5kj [...]
December 10, 2009, 6:01 pmRealistLiberal says:
I wonder how much of that is actual a true attempt to give a new justice a unanimous opinion versus the fact that many of the early announced opinions are unanimous (or at least have no significant dissents). Which comes first, the chicken or the egg?
December 10, 2009, 6:50 pmSara says:
If I understand the process, all the justices knew after their conference that the judgment was unanimous. They don’t know if the opinion is going to be unanimous until Sotomayor circulates her draft.
December 10, 2009, 6:57 pm[insert here] delenda est says:
In Australia’s High Court (supreme court equivalent) there is such a tradition. It was recently broken by the token liberal activist Judge, but has worked fairly well otherwise.
A homologous tradition applies to Parliament – your maiden speech is listened to without interjection or interruption. A while a ago a notable populist was elected, and her maiden speech was itself an interjection. She wasn’t afforded a second chance…
December 10, 2009, 7:41 pmSimon Dodd says:
There are two different ideas being commingled: the original assignment of a unanimous case, and the ultimate disposition of that case. We know from past disclosures that cases that come out of conference one way sometimes take unexpected turns. If there is a tradition of giving the new justice a unanimous or otherwise uncontroversial assignment, that tradition could only be exercised in relation to the state of play at the time of assignment, unless there is a parallel tradition that Justices should swallow any disagreements with it—a tradition that seems unlikely to have arisen, let alone survived. Could it not be the case that Mohawk Industries seemed unanimous at the conference and that Thomas decided to write only after Sotomayor circulated her draft?
December 11, 2009, 8:54 amMartinned says:
That sounds plausible enough, except that I’d imagine Thomas’s dissents/concurrences are fairly predictable. In this case, it would have been perfectly clear that Sotomayor and the Court were going to deal with this case under Cohen, and that Thomas doesn’t like that precedent. Mohawk is still a 9-0, so it doesn’t directly clash with the alleged tradition, but they could have given her a “more unanimous” case, i.e. Ginsburg’s Railway Labour Case. (Warning: I don’t know enough about that case to be able to say whether that was an equally predictable 9-0, but let’s assume it was.)
December 11, 2009, 11:11 amFriday round-up: afternoon edition | SCOTUSblog says:
[...] Mohawk Industries v. Carpenter, and this post by Eric Muller at the Faculty Lounge, John Elwood at The Volokh Conspiracy discusses whether there is in fact a tradition that the first opinion written by a new justice is [...]
December 11, 2009, 3:23 pm