The Volokh Conspiracy

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The Supreme Court's First Divided Opinion of the Term

A 5-4 decision, but not along the lines we usually expect.


The Supreme Court has issued seven signed opinions in argued cases thus far this term. Six of these opinions were unanimous. The seventh, issued this morning, was a 5-4 decision, but not along the lines many would expect.

Justice Thomas wrote the opinion for the Court in Stokeling v United States, holding that a robbery offense that requires the defendant to overcome a victim's resistance is an offense that requires the use of "physical force," and can thus qualify as a "violent felony" under the Armed Career Criminal Act (ACCA). He was joined by Justices Breyer, Alito, Gorsuch and Kavanaugh. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan, and the Chief Justice.

That Justice Breyer joined the majority in a criminal law case like this is not particularly surprising. He has the occasional tendency to cross over in some criminal law cases. That the Chief Justice joined the dissent, however, is a bit more surprising.

Not only is this the first divided opinion of the term, it is also the first "second" opinion of the term. That is, Justice Thomas is the first justice to author a second opinion in an argued case. Justices Ginsburg, Kavanaugh, Gorsuch, and Breyer have authored one signed majority opinion each thus far this term, as has the Chief Justice. Justice Sotomayor is also the first to author a dissent. Justice Alito and Kagan have yet to issue an opinion in an argued case. [Update: I neglected to note that Justice Ginsburg has also written a concurrence, in addition to writing the first opinion of the term. So she has authored two opinions in argued cases, but only one for the Court.]

[Note that the above refers to "signed" opinions. This is because the Court has issued two per curiam opinions thus far this term. Whichever justice was responsible for those opinions, they were not signed, so cannot be credited to any particular chambers. The above also does not account for opinions respecting orders, of which there have been several thus far this term, including eight by Justice Sotomayor and three by Justice Gorsuch.]