Subject: Re: No Opinions in Texas or Vermont Cases Today. Some Hints on Who is Writing Those Opinions
From: Rick Hasen
Date: 6/19/2006, 8:36 AM
To: Edward Foley
CC: election-law <election-law@majordomo.lls.edu>

Ned,

Upon hearing from Marty, I too speculated that Breyer would write in the Vermont case and Kennedy the Texas case.  If Breyer wrote an opinion along the lines you suggest, however, I don't think it would be a majority opinion.  Indeed, there would likely be an opinion concurring in the judgment from Scalia, Thomas, Kennedy (and possibly Roberts and Alito).  Instead, Breyer, if he wants a larger majority, might write a narrower, more technical , state decisis-oriented opinion, striking down the Vermont contribution limits, distinguishing past precedent and not opining on the broad "Active Liberties" issues.  Potentially such an opinion could attract the votes of Kennedy, Roberts and/or Alito, along with Ginsburg, Souter, Stevens.

And if that happened it would be the best possible outcome for those who support contribution limits (aside, of course, from the unlikely opinion upholding those limits).

Edward Foley wrote:
Pure speculation: Breyer to write a narrow opinion striking down the Vermont contribution (and expenditure) limits according to his understanding of Shrink Missouri and well as his democratic/constitutional theory in Active Liberty; Kennedy writing the controlling opinion (but perhaps only for himself) in the Texas redistricting case, holding that there is no per se objection to mid-decade redistricting, deferring the basic question of a post-Vieth standard for partisan claims, and invalidating a couple of specific districts on racial gerrymandering grounds?????


At 10:48 AM 6/19/2006, Rick Hasen wrote:

No Opinions in Texas or Vermont Cases Today. Some Hints on Who is Writing Those Opinions



The Supreme Court did not issue opinions today in the Texas redistricting case or the Vermont campaign finance case. We expect 16 more sets of opinions from the Court, and the next opportunity for opinions is Thursday.

Marty Lederman just called me with the following observation. He notes that Justices Kennedy and Breyer are the only Justices who have not authored opinions from the February session (in which both the Texas and Vermont cases were argued). Marty says that anything is possible, and there may be multiple opinions, but his guess at this point is that Kennedy and Breyer are each the lead author of one of these opinions.
Tune in again Thursday.
-- 
Rick Hasen 
William H. Hannon Distinguished Professor of Law
Loyola Law School 
919 Albany Street 
Los Angeles, CA  90015-1211 
(213)736-1466 - voice 
(213)380-3769 - fax 
rick.hasen@lls.edu 

http://www.lls.edu/academics/faculty/hasen.html 
http://electionlawblog.org
    


Spam
Not spam
Forget previous vote


Edward B. Foley
Director, Election Law @ Moritz, and
Robert M. Duncan/Jones Day Designated Professor of Law

The Ohio State University, Moritz College of Law
phone: (614) 292-4288; e-mail: foley.33@osu.edu
http://moritzlaw.osu.edu/electionlaw/


-- 
Rick Hasen 
William H. Hannon Distinguished Professor of Law
Loyola Law School 
919 Albany Street 
Los Angeles, CA  90015-1211 
(213)736-1466 - voice 
(213)380-3769 - fax 
rick.hasen@lls.edu 
http://www.lls.edu/academics/faculty/hasen.html 
http://electionlawblog.org