Supreme Court watchers were left scratching their heads when they learned Justice Neil Gorsuch was the author of Monday’s landmark LGBT rights ruling, but not because the appointee of President Donald Trump might have been expected to side with his conservative colleagues in dissent.
Rather, it was a matter of math.
Each of the nine Supreme Court justices usually writes at least one opinion for each month the court hears arguments. Gorsuch’s opinion was his second for October while three of his colleagues wrote nothing. That highly unusual lineup suggests something going on behind the scenes.
Gorsuch became the only justice other than retired Justice Anthony Kennedy to author a major high court ruling in favor of LGBT rights when he wrote the decision declaring workplace discrimination on the basis of sexual orientation or gender identity illegal under federal civil rights law. The 52-year-old justice earlier wrote the ruling requiring unanimous jury verdicts in state criminal cases.
The answer is obvious in one sense. He wrote opinions in both cases that attracted a majority of the court. But how he came to write them is a mystery.
After each month of arguments, which the court calls a sitting, Chief Justice John Roberts assigns the opinions for cases in which he is in the majority. Otherwise, the senior justice in the majority — usually either Clarence Thomas or Ruth Bader Ginsburg — decides who gets to write for the court. The justices work together to ensure there is a relatively even distribution of labor.
It seems unlikely, based on the usual practice, that Gorsuch would have been assigned both majority opinions in October, especially since Roberts and Ginsburg were two justices who didn’t write at all from that month. Justice Brett Kavanaugh was the third.
One of those three justices certainly was working on an opinion in a case that settled before the court could issue a decision. But that still leaves two justices with nothing.
Occasionally, positions shift after the initial tally taken just after the arguments, either because a draft majority opinion is unpersuasive to a justice, or a dissent is compelling enough to draw another vote. In rare instances, an opinion originally circulated as a dissent becomes the majority.
Such a shift might have happened here or in the case about unanimous juries, although there is not much evidence to suggest it with either one.
Georgetown University law professor Martin Lederman acknowledged on Twitter that he was speculating when he wrote that Gorsuch may have been undecided at first and that Roberts drafted an opinion siding with the employers. “Gorsuch didn’t buy it; drafted this instead, and the Chief came over to it,” Lederman wrote.
Or, he added, maybe the change happened in the juries case.
Majority opinions often have fairly lengthy recitations of the facts of the case. Gorsuch’s opinion basically devoted one paragraph each to the three fired employees whose cases the court decided Monday.
But the justice offered an explanation for the brevity. “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender — and allegedly for no reason other than the employee’s homosexuality or transgender status,” he wrote.
Among other related questions is, what took so long? More than eight months elapsed between the arguments and Monday’s decision. That can happen at the court, but there often is a story behind the delay.
A highly anticipated case on affirmative action involving the University of Texas was argued in October 2011 and not decided until late the following June. The 7-1 outcome, in the end, decided very little.
Several years later, author Joan Biskupic wrote in “Breaking In,” her biography of Justice Sonia Sotomayor, that Sotomayor had drafted a biting dissenting opinion that appeared to have changed some conservative justices’ votes and ended up allowing the university to preserve its admissions policy.
The draft opinion eventually saw the light of day two years later, when the court upheld a constitutional amendment in Michigan that banned the consideration of race in public college admissions.
When Justice Harry Blackmun’s papers became public in 2004, they revealed that Kennedy had switched his vote — and the outcome — twice in 1992, in an abortion case that reaffirmed the 1973 Roe v. Wade ruling and in a separate case banning clergy-led prayers at public school graduations.
Though he started out on the other side, Kennedy wound up writing or co-writing the majority opinion in both cases.
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