Reading the Tea Leaves on First American Financial Corp v. Edwards

It looks to me that there is only one case undecided from the Supreme Court’s December sitting — First American Financial Corp v. Edwards — and only one Justice without a majority opinion assignment: Justice Thomas. That suggests that the majority opinion was at least initially assigned to Justice Thomas. The case involves whether the purchaser of real estate settlement services had Article III standing to sue for an alleged violation of the Real Estate Settlement Procedures Act that the petitioner argues did not affect the services’ price or quality.

Even if I’m right  so far, it’s been long enough since argument that there’s a reasonable chance that something unusual has happened–i.e., that Justice Thomas has lost the majority and is writing only for a plurality or perhaps even writing a dissent. Mind you, my predictions have generally been no more accurate than the Magic 8-Ball‘s, and I suspect this case will be no different.

One alternative possibility I have heard is that Justice Thomas was assigned the majority opinion in yesterday’s Williams v. Illinois but lost it, and he did have a separate opinion in that case. But because Justice Thomas’s views on the Confrontation Clause have long been a bit different from his colleagues–witness his lone concurrence in the judgment/dissent in Davis v. Washington–I doubt he would have been assigned that opinion.

What do you think?

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