The Volokh Conspiracy

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A Closer Look At The Unanimous First Opinion Tradition

It isn't so clear that a Justice's first assigned opinion has been unanimous.


Justice Barrett's first issued published opinion in United States Fish and Wildlife Serv. v. Sierra Club, Inc. was not unanimous. And I observed that there is something of a tradition for a Justice's first opinion to be unanimous. But on closer inspection, I am not so sure.

Let's start with Justice Kavanaugh. His first published opinion, Henry Schein Inc. v. Archer & White Sales Inc. was unanimous. But this case was not his first assigned opinion. Schein was argued during the Court's November sitting on October 29, 2018, and decided on January 8, 2019.

However, Justice Kavanaugh was also assigned a case from the Court's October sitting. Air and Liquid Systems Corp. v. Devries was argued on October 10, 2018, and decided on March 19, 2019. That case split 6-3, with Justice Thomas, Alito, and Gorsuch in dissent. Yes, Roberts's first assignment to Kavanaugh was a case in which the three most conservative members of the Court dissented! Welcome to SCOTUS, Justice Kavanaugh.

Meanwhile, there was a single 9-0 case from the October sitting. Justice Breyer wrote the unanimous majority opinion in United States v. Stitt, an Armed Career Criminal Act decision. Stitt was argued on October 9, the day before Devries. Both Devries and Stitt would have been assigned at the same Friday conference. Why would the Chief give Kavanaugh the 6-3 case for his inaugural assignment, while giving Breyer a 9-0 opinion. This practice tells me that Roberts doesn't much care for this unanimous inaugural opinion business. Yet, Kavanaugh's first published opinion was still unanimous.

Let's go back to OT 1994. Justice Breyer's first published opinion was not unanimous. Allied-Bruce Terminix Co. v. Dobson split 7-2 (the same vote as Sierra Club). Justice Scalia and Thomas welcomed the Junior justice with a dissent. This case was argued on October 4, 1994, and was decided January 5, 1995. Meanwhile, there were four unanimous decisions from the October sitting. United States v. Shabani, argued on October 3 was 9-0. And U.S. Bancorp Mortgage Company v. Bonner Mall Partnership, argued on October 4, was unanimous per Justice Scalia. There were two cases argued on October 4. Chief Justice Rehnquist gave the 9-0 case to Justice Scalia, and the 7-2 case to Justice Breyer. Plus there were two 9-0 cases argued on October 11, authored by Justices Thomas and O'Connor. Four out of the nine Justices from the October sitting had 9-0 cases. But not Justice Breyer.

I really wonder if this so-called tradition exists at all.

Sierra Club was argued on November 2, 2020–Barrett's first day on the "virtual" bench. (She was confirmed on October 27). As best as we can tell, Sierra Club was Justice Barrett's first assigned, and first published case. And, we will find out in due course if there was another 9-0 case that the Chief assigned elsewhere from the November sitting.

H/T to Patrick Glen.

Update: Justice Kagan wrote about Justice Scalia's dissent from her inaugural opinion in The Essential Scalia:

But the Nino test makes my work better even when—or especially when—I wind up disagreeing. I discovered this effect early on, in my very first opinion. The Court's tradition is that a justice's maiden majority be unanimous. But Nino thought that silly: what was the point, he asked me (as he pretended to seek my permission for his solo dissent), of a convention that shied away from, rather than delighted in, the clash of ideas? So I was forced to respond to Nino's incisive views on the car-ownership deduction in bankruptcy law and, in that way, to make my own argument tighter and more convincing.