Supreme Court

Justice Thomas Beats Out Justice Ginsburg for First Signed Opinion of OT 2019

The Notorious RBG is a notoriously quick opinion writer, but not this year.

|The Volokh Conspiracy |

This morning, the Supreme Court released the first signed opinion of the term in an argued case in Rotkiske v. Klemm, a case concerning the statute of limitations under the Fair Debt Collection Practices Act. Although the subject matter of this case may not sound particularly exciting, there are several notable things about today's opinion.

First, Justice Thomas wrote the opinion for the court. This is notable because Justice Ginsburg is often the first justice to issue a signed opinion in an argued case. Indeed, this is the first time since OT 2015 that the first opinion in an argued case was not written by RBG.

Second, Rotkiske was not unanimous. Rather, it was 8-1. Justice Sotomayor wrote a separate concurrence and Justice Ginsburg wrote an opinion dissenting-in-part and dissenting in the judgment. So while she didn't have the first opinion for the Court, Justice Ginsburg did get write the term's first dissent in an argued case.

The lack of unanimity in Rotkiske is interesting because early opinions are usually unanimous opinions. After all, it's easier to finalize an opinion when the answer is clear and there's no need for extensive back-and-forth among the justices. So it's unusual for the first opinion to come in a case that splits the Court and produces multiple opinions. Early Per Curiam opinions are no surprise. Early divided opinions are.

Rotkiske was the only decision released today, but word is there could be more tomorrow.

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  1. Ginsberg has not gone into the afterlife yet, despite being terminally ill and being in and out of the hospital. I’m not surprised Thomas beat her, for what it’s worth.

    1. Tell me not-at-all-hoping-someone-dies doctor, what your basis for concluding that she is “terminally ill” is?

      1. She will die, like you, and like me, and like everyone. She even had the benefit of growing old first. However I am not “hoping” for her to die. Where do you get that? In fact, I hope she makes it till January 21st 2021 for Trump’s second term because I don’t want to deal with the fallout of McConnell filling her seat in an election year (but if he does, it will still be a good decision).

        First, just look at a picture of her, not exactly a picture of health. She had (has) lung cancer, had (has) colon cancer, and had (has) pancreatic cancer, has a coronary stent, and she is 89. Just last year she had two *malignant* nodes removed. She also falling and breaking bones. She is in and out of hospital in November for “fever and chills.” Uh huh. The cancer has spread, and she was dealing with effects of it or the efforts to keep her alive till after the election.

        So, do I know for sure the cancer is terminal…well, I’d take the bet in a heartbeat, but if you want incontrovertible proof, I admit I can’t give it.

        1. She’s 86.

          Do you really think it would be a good decision to fill the seat next year after all that stuff McConnell and Republicans said about giving the American people the choice? Do you honestly think that?

          He literally said:

          “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.”

          I know McConnell doesn’t have enough shame, but wouldn’t you at least be a little bit embarrassed if you used that rhetoric to defend the decision and then decided it didn’t matter?

          1. 86, I stand corrected, thanks.

            McConnell lied, the same way Biden lied when he came up with the so-called “Biden Rule” that a president shouldn’t fill a seat in an election year. I wouldn’t trust either of them as far as I can throw them.

            Still, I think it will be a good decision to fill it anyway, accepting the fallout regardless, because in the era of non-good feelings that we are in, you can’t expect the Democrat opposition to play nice, and if you do you’re handicapping yourself. One could make the case that he should not fill it as impetus to get hesitant Republicans to the polls, like me in 2016, to vote for Trump, but if Trump loses fill it in the lame duck session. Now that would be a firestarter, if ever there was one.

            If she won’t retire for the good of the Republic, we don’t have an obligation for the good of the Republic to be nicey nice about her seat.

            1. So its just about power rather than principle, got it.

              1. No, the principle is the wise prevention of the seat’s power, within constitutional limits, from going into the hands of those antithetically opposed to your way of life. That’s principle.

                Still, I’m not in charge. You should be writing Messrs. Trump and McConnel and Judge Ginsberg to explicate the situation for us.

                1. Your “principle” is that any government left of where you would like it is per se illegitimate. That’s not a principle, that’s just will a will to power.

                  And McConnell already did. He said that the principle is a democratic (small d) one. If he decides that it is not next time around, there is no principle just a will to power based on the belief that Democratic (capital D) is and always will be illegitimate.

                  1. Nope. Sorry. Obama was legitimate and left of where I would have wanted. If Warren gets 270 in the EC, it would be legitimate, but left of where I would prefer. Don’t mangle the meaning of the word illegitimate. If Trump nominates, and McConnell holds a vote, and the senate confirms, one Justice Volokh, in an election year, it would be legitimate.

                    Will to power? Come off that high horsed nonsense. If Democrats cared about such things, they wouldn’t be trying to impeach a president in an election year for “obstruction of Congress” and “abuse of power” after the fake Russia collusion conspiracy fell to pieces about them.

                    Again, preventing a lifetime appointment to the Supreme Court by someone antithetical to your beliefs, while not breaking laws or doing so unconstitutionally, and only ruffling the feathers of those who complain about “norms” when they never hesitate to throw out norms when it benefits them….that is standing firm in the legitimacy of your beliefs. Now that’s principled.

                    1. The principle ALWAYS was you keep the seat open if you can get to the election and avoid allowing the President of the other party/faction to fill it, and you fill it if your party/faction holds the White House. It dates back at least as far as Fortas (who was filibustered by Senate conservatives who thought Nixon would nominate someone more conservative).

                      Biden and McConnell both gave voice to the principle but pretended that it was about some idea of “letting the voters decide”. But did anyone really believe that it wasn’t really about keeping the seat open until the election in the hope of a more favorable nominee?

                      At any rate, I really hate the morbid talk about Justice Ginsburg. It’s creepy when it comes from the right, hoping to fill her seat, and it’s also creepy when it comes from the left, usually from people who think they know a lot more about judging than they do and who are looking to proclaim themselves “right” to have said that she should have retired in 2015 or 2009.

                    2. The morbid talk was uncalled for, and I regret bringing it up. She will face the ultimate judge, as will I.

          2. “I know McConnell doesn’t have enough shame, but wouldn’t you at least be a little bit embarrassed if you used that rhetoric to defend the decision and then decided it didn’t matter?”

            1. Hopefully Ginsburg will live a long time.
            2. If the seat is vacant, maybe we will have the opportunity for a real bipartisan moment. Maybe McConnell will say, “You know, the other side made some really good arguments about the vacancy in the last election year, and in retrospect I think I’m persuaded”. And then he can hold hearings, and the nominee, if qualified, can be confirmed will a large bipartisan majority.

    2. It’s “Ginsburg,” with a “u,” not “Ginsberg,” with an “e.” I know all those Jewish names sound alike, but still…..

      1. Thanks. I knew that, but didn’t check when I typed a comment in a hurry.

  2. ” . . . but word is there could be more tomorrow . . . ”

    A leak? Anonymous source(s)?

  3. Why no mention of the citation of co-blogger Bray’s amicus brief in today’s Ginsburg dissent (page 5)?

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