Balkinization  

Monday, June 24, 2013

Inside Baseball Observations/Speculations on Today's Supreme Court Opinions

Mark Tushnet

I have nothing of substance to say now about the Court's opinions today. Several thoughts, though:

1. In Kebodeaux, how many sentences does Justice Breyer begin with "And." And, how many other Justices are fond of doing so? (Lots, and none, I think.)

2. Why did it take so long to hand Fisher down? Speculations based upon nothing other than the opinions and the timing: (a) The ultimate opinion isn't how it looked at the outset. Initially there was a more substantive discussion of Texas's program, but it wouldn't fly (meaning, I would think, that Justice Kennedy ended up thinking that he didn't have good answers to the criticisms he got, perhaps from both sides). Counterargument: There's nothing in Justice Thomas's opinion suggesting that he was writing about some now-gone portions of a proposed opinion. Counter to that: He did a good job of scrubbing the opinion of such references, which contributed to the length of time it took to get the cases out.

(b) Justice Thomas's opinion simply took a long time to write. There's a lot of mining of old briefs, and there were lots to go through, and then he had to choose precisely which quotations to use.

(c) The Justices (not entirely consciously and sometimes contrary to their stated views) love public attention, and holding the opinion up (for "polishing," no doubt) heightens suspense and public attention.

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