April 13, 2006
A Dumb Question
April 13, 2006 02:26 PM
Does anyone know what happens if the Chief Justice concurs in the judgment only when it comes to the assigning of the opinion? Or is this truly a dumb question because at the time the opinion is assigned there are no concurrences, just a show of hands as to what the outcome should be? Or do we just not know because it takes place behind closed doors?
I ask because I wonder who assigned Justice Scalia to write the opinion of the court in Crawford v. Washington. Was it Stevens or Rehnquist?
In Crawford v. Washington, I'm inclined to think that Stevens assigned the opinion just because there's such a massive difference between Scalia and Rehnquist's reasoning to reach the result. Rehnquist's entire concurrence is a criticism of the majority opinion; Scalia kills Ohio v. Roberts, while Rehnquist claims that there is no need to do so. Presumably there was some discussion before the show of hands about what the justices' understanding of the precedent was, and at such a time the division between Rehnquist & O'Connor and Scalia & the other six would be apparent. In a case where the concurrence sprang from a less fundamental disagreement, I'd think it more likely that Rehnquist assigned the majority opinion, read it and thought, "Eh, not exactly what I was thinking," found that it was what four or more others had been thinking, and wrote his own concurrence.