Heller: "written in that sitting"?

[ctdonath]

From today's SCOTUS announcements:

10:18 Tom Goldstein - For Heller fans, the correct count for March is that two cases remain -- Rothgery (involving the right to counsel) and Heller -- and Justices Scalia and Souter have not yet written in that sitting.

Can someone knowledgeable elaborate on the phrase "written in that sitting"?

 

[El Tejon]

Not turned in their homework.

 

[Sam Adams]

I'm guessing that it means that of all the cases heard by the Court in March and set for decision this term (which ends next week), only Souter & Scalia haven't written an opinion. I suppose that they're each supposed to be given a crack at writing the majority opinion (and the assignment of that is up to the Chief Justice), but that also presupposes that each Justice is actually IN the majority on at least one case.

Let's hope & pray that Scalia writes the Heller majority opinion. The other guy makes me want to run for the toilet.

 

[ctdonath]

So Scalia and Souter may still be waffling?

 

[mort]

Sounds like things are pushed off until next monday. Have a good weekend folks for montana might secede on Monday.

 

[P. Plainsman]

So Scalia and Souter may still be waffling?

Nah, wouldn't mean that. Just means one of them got the writing assignment after oral argument in March and the opinion (and the probable concurrences, dissents, etc.) are still being finalized. It's a huge case; not surprising it'll come down near the very end.

Souter as the author of a majority opinion in Heller would be extremely bad.

Scalia as the author of a majority opinion in Heller would be fantastic. The man's a gunnie, a genuine shooter and hunter. Everything Scalia said in the oral argument indicated that he "gets" RKBA at a deep, serious level. The mind reels.

It's also possible that neither of them got assigned the opinion. The Court usually tries to spread the opinion assignments around equally but it doesn't always work out that way in practice.

 

[usmarine0352_2005]

Nah, wouldn't mean that. Just means one of them got the writing assignment after oral argument in March and the opinion (and the probable concurrences, dissents, etc.) are still being finalized. It's a huge case; not surprising it'll come down near the very end.

Souter as the author of a majority opinion in Heller would be extremely bad.

Scalia as the author of a majority opinion in Heller would be fantastic. The man's a gunnie, a genuine shooter and hunter. Everything Scalia said in the oral argument indicated that he "gets" RKBA at a deep, serious level. The mind reels.

It's also possible that neither of them got assigned the opinion. The Court usually tries to spread the opinion assignments around equally but it doesn't always work out that way in practice.

I thought that because of the historical significance of this case, people were saying Justice Roberts being the Chief of SCOTUS would want to write this opinion.

Is this incorrect?

 

[green-grizzly]

No one knows for sure who will be writing Heller. Many were guessing it would be Roberts or Kennedy who would be writing the majority opnion.

 

[akodo]

wouldn't/couldn't one be writing the majority opinion and one writing the minority dissent?

 

[armoredman]

Could be....I'm getting an ulcer from this waiting...

 

[mnw42]

I would assume that the decenting opinion would be the second written not the first, or am I wrong?

 

[tube_ee]

It's his call...

I thought that because of the historical significance of this case, people were saying Justice Roberts being the Chief of SCOTUS would want to write this opinion.

If he wants it, and you can certainly see where he would, it's his. How much input from the Associates the Chief takes, and how he makes his decisions, I don't know. But how often does a Court get to decide the meaning of one of the BoR amendments? After this, the 3rd is the only one left, and if that one were in a position to come before the Court, there likely wouldn't be a Court to decide it.

Unambitious people don't get to SCOTUS. I think it'll be Roberts.

--Shannon

 

[Shade00]

If we're lucky it'll be Scalia. Why? Scalia is willing and (more importantly) able to fully articulate the opinion we want to see. Everything I've read from Roberts has been... well... underwhelming. He does not impress me, and I do not think he was an appropriate CJ. Just my .02.

 

[ctdonath]

When the dissent is written presumably depends on how much of it is disagreement with the prevailing opinion in specifics, vs. standing on its own.

 

[Joe Gunns]

Each justice can write their own opinion indicating they either concur or demur from the majority opinion but have arrived at their position through a different line of reasoning than that stated by the "official" majority/minority opinion.

 

[legaleagle_45]

I would prefer an opinion written by Kennedy as opposed to one written by Scalia as Kennedy's take on the 2nd includes a strong self defense component, while Scalia seems to see the self defense component to be merely a serendipity result. This will have strong implications for a latter case involving incorporation.

However, I do not believe it will be either Kennedy or Scalia... it will most likely be Roberts unless it was necessary to give it to someone like Ginsburg in order to obtain a super majority opinion.

 

[Ridgeway]

i'd find it somewhat hard to believe scalia would be writing it, just simply due to the likely increased difficulty of gaining a majortity and perhaps a higher liklihood of having a plurality decision

kennedy may be a proper middle ground, though i still fully anticipate stevens dissenting (and i'd put $ on him writing the dissent), with ginsberg joining his dissent
souter perhaps concurring with the judgment if scalia writes, and joining with the majority with a more moderate kennedy opinion


will be interesting to see how it comes out

 

[spitfyre]

If Souter and Scalia are writing the majority opinions for either Rothgery or Heller, then it's probably a safe bet that Souter will be writing Rothgery and Scalia will be writing Heller.

 

[Rmeju]

Am I the only one thinking that Scalia is writing his own opinion supporting, but probably going past, the rest of the majority?

Believe me, if he's the author of the majority opinion, there's going to be a lot of people at work next Monday who'll wonder why I'm dancing around and screaming like that.

Reid

 

[Brett Bellmore]

Considering some of the things Scalia has written, while I'm sure that all things being equal he'd prefer to uphold the 2nd amendment, there's at least an outside chance he'd decide upholding it would upset too many applecarts. The guy is not a strict constructionist by any stretch, as Raich demonstrated: He's perfectly willing to sign on to decisions he thinks are objectively wrong if he has what he thinks is a good enough reason.

 

[rhubarb]

legaleagle_45 wrote:
I would prefer an opinion written by Kennedy as opposed to one written by Scalia as Kennedy's take on the 2nd includes a strong self defense component, while Scalia seems to see the self defense component to be merely a serendipity result. This will have strong implications for a latter case involving incorporation.

Is the Second Amendment about self defense? Hunting? Target shooting? I own guns for those reasons, but I don't think that's why the Founding Fathers guaranteed us the right to own guns.

I don't see any reason to ignore the 800 lb. gorilla of the citizens' power to fire their public servants by force if necessary. I don't doubt our modern jurists would balk at accepting that truth, but their reluctance to acknowledge the original intent of the Second is exactly the kind of dismissal of rights that inspired the Second.

 

[Titan6]

Getting stacked pretty deep around here over nothing. But it sure would be nice if Scalia wrote the decision.

 

[H088]

It incorporates all of those things, self defense and defense of the country.

 

[legaleagle_45]

It incorporates all of those things, self defense and defense of the country.

Agreed. But consider Scalia's comment in orals:

JUSTICE SCALIA: I don't see how there's any, any, any contradiction between reading the second clause as a -- as a personal guarantee and reading the first one as assuring the existence of a militia... But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.

Plus consider what he has previously written on the subject.... from Scalia's book: "A Matter of Interpretation: Federal Courts and the Law":

"But there is no need to decieve ourselves as to what
the original Second Amendment said and meant. Of course, properly understood it is no limitation upon
arms control by the states."

Scalia certainly believes that the 2nd protects an individual right, but the individual right is so as to protect the well regulated militia and he alludes to no self defense component whatsoever. We NEED the self defense component otherwise, IMHO, we lose the incorporation battle... simple as that.

 

[camslam]

Camslam is furiously rubbing his hands together "Mr. Miyagi" style, saying, "Come on Scalia!"