The Volokh Conspiracy

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Supreme Court

Did Justice Barrett Lose the Majority in the PennEast PIpeline Case?

The junior justice wrote only four signed opinions in argued cases, but had several dissents from the April sitting.


Chief Justice Roberts tries to ensure that opinion writing assignments are distributed fairly evenly, and this was largely accomplished this term. Six of the justices had six majority opinions in argued cases. Two justices (Thomas and the Chief, the two senior-most justices) had seven majorities. Justice Barrett only had four. It is no surprise that a brand new justice was assigned fewer cases than others, but four still seems low. It is possible she wrote one or more of the Court's unsigned per curiam opinions, but there is no way to tell.

Justice Barrett's number of majority opinions seems particularly odd in light of the large number of cases in the April sitting. The Supreme Court heard oral argument in thirteen cases during the April sitting. The sitting produced twelve decisions (as two cases were combined into one). Four justices wrote two majority opinions from April. Four justices wrote a single opinion from that sitting. Only one justice—Justice  Barrett—wrote zero.

The lack of an opinion assignment from the start of the term, when Justice Barrett was still getting acclimated, would be no surprise. One at the end seems odd. I also see no evidence that Justice Barrett was behind in her opinion writing when the April sitting began. She had already written majorities in two published opinions, and did not have an unusual amount of previously assigned work to complete. She had one opinion left from the fall (Van Buren) and was assigned Goldman Sachs at the end of March.

While Justice Barrett did not write a single majority in an argued case from the April sitting, she did author three dissents. She wrote the principal dissent in HollyFrontier, Minerva, and PennEast PipelineThis creates the possibility that one of those was initially a majority opinion, which would have given Justice Barrett five for the term.

Going by the numbers, if one assumes that the Chief Justice tried to allocate an even number of opinions to each justice including himself, PennEast would be the most likely candidate for a flip. Had Barrett written the decision, she would have had five majority opinions, and every other justice (save Thomas) would have had six. What would have cause a justice to flip in PennEast? Perhaps a concern about the practical consequences for pipelines and other infrastructure of barring the use of delegated eminent domain power to condemn rights-of-way across state lands. Such a concern might well have prompted concern for Justices Kavanaugh, Alito, or Breyer. (Justice Kagan remained in dissent, likely because Justice Barrett's opinion was more consistent with the Court's precedent on state sovereign immunity than was the majority.)

Minerva also seems like a possibility. Although the Chief likes to try and keep the opinion assignments even, given the ideological split on the Court, it might be hard to ensure that the Court's liberals get as many majority writing assignments as the conservatives, as there are fewer opportunities. Thus if Kagan, the junior-most liberal justice, had only five majority opinions in the term, it would not have been odd. Here the possible flipped votes would have been Justice Kavanaugh or the Chief (if not both), possibly motivated by a concern that a Kagan dissent would have accused the majority of unnecessarily abandoning precedent, a theme she likes to invoke and the Chief likely wants her to avoid.

If a case was flipped (and this remains an "if"), it is also possible that it was HollyFrontier, but this seems likely he least likely candidate of the three, both given the line-up of justices, the content, and the presumption that opinion assignments are distributed somewhat evenly. Note that whereas PennEast and Minerva were both 5-4 decisions. HollyFrontier was 6-3, so it would have required two justices to change sides.

It would be a shame if Justice Barrett lost one of these opinions because (in my view) she had the better of the argument in all three cases (though I readily admit that the issues in Minerva are well outside of my areas of expertise). Of course, it is entirely possible that she had a lighter load because she was confirmed well into the start of the Court's term, and did not have the usual time to organize her chambers and get up to speed, so the Chief just held back.

Whatever the cause of her light load this year, we can expect (and look forward to) the full complement of Justice Barrett opinions next term, and in the years to come.