Turtle Talk

No news again. Not sure what that means, but likely it means the Court is fractured. But then again, they usually are so that conclusion isn’t helpful.

SCOTUSblog data tells us that Justices Ginsburg and Kagan have not yet written for the December sitting, which is when the Court heard the Bay Mills argument. Usually, to balance workload, each Justice is assigned one opinion per sitting. But the Court heard 11 arguments in December, so at least two Justices will have two assignments. Justice Scalia, we know after today, has written twice for December, so we can say with some limited certainty that he will not be the author of the majority opinion in Bay Mills. In other words, it could be anyone.

I’m hoping for Justice Kagan (see my commentary on the argument). Her questions at oral argument suggested a narrow, statute-based view of the matter, though I am doubtful she would find in favor of the tribe. Justice Ginsburg dissented in Kiowa, and her opinion would likely go against the tribe in this one, too. The question there is how far she would go.

But it’s very possible neither Kagan nor Ginsburg write, which means that anyone could.