Can The Assigning Justice "Direct" That An Opinion Must Be Published Per Curiam?

I had long assumed that choice was based on a consensus of the majority.


Jeff Toobin wrote a new column titled "Clarence Thomas Is the new Chief Justice." If only. The Chief remains firmly in charge whenever Justices Kavanaugh and Barrett follow along. It is surprising how few majority opinions Justice Thomas assigned this term. But one assertion Toobin made surprised me.

Roman Catholic Diocese split 5-4, with Roberts in dissent. As a result, Thomas could assign the majority opinion. But that opinion was an unsigned per curiam opinion. At the time, I speculated that Justice Alito was the primary author, as the decision largely tracked his Calvary Chapel dissent. But, because the opinion was per curiam, the authorship may never be known.

Toobin drew an inference:

With Roberts in the minority, Thomas assigned the opinion, directing that it be published "per curiam," or by the court, which the Justices usually reserve for routine or non-controversial matters.

Can the assigning Justice "direct" that an opinion must be published per curiam? I had long assumed that choice was based on a consensus of the majority. In theory, at least, a Justice could dissent from the decision to publish the opinion per curiam. Unlikely in such a contentious case case, but still possible. Moreover, given the tight time constraints on the shadow docket, it is likely that several Justices may have contributed to the decision. Roman Catholic Diocese also had shades of Kavanaugh's Calvary Chapel dissent. A per curiam label may have reflected the group effort.

I tend to think Toobin erred, but I welcome any corrections.

NEXT: Freedom of Speech ≠ The Free Speech Clause

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  1. I don’t think the Supreme Court should ever issue 5-4 per curiam opinions for much the same reason I don’t think it should issue 5-4 rational basis decisions.

    If nearly half the court disagrees, the issue simply isn’t so obvious or indiaputable as all that. Pretending it’s so leads to disrespect of the judiciary, no more how loudly, forcibly, or fervently the bare majority claims things are obvious and no sane person could possibly disagree.

    When justices say no reasonable person could possibly disagree on matters that a lot of presumptively reasonable people unambiguously disagree on, they create an impression that it is they, and not their oponents, who are being willfully blind to reason. The public catches them in the act of covering their eyes while loudly proclaiming there is nothing to be seen.

    1. A per durian opinion is not designed to suggest that “no reasonable person could possibly disagree” on the correct outcome.

      1. A per durian opinion, by definition, stinks.

    2. I’ve always figured that a split decision over the meaning of a law, by learned judges who have months to quibble and argue and research dusty case law and amici briefs, indicates that said law is not clear enough for mere mortals, and should be stricken in its entirety and the legislature, agency, etc should be told to try again.

      1. You appear to be assuming good faith on the part of the dissenting judges.

        When it comes to the Left, good faith should never be assumed.

        See: all the law professors who claim the filibuster is the greatest thing ever when it stops Republicans, and “unconstitutional” when it stops Democrats, for just one recent example

    3. That reminds me of contract decisions on ambiguity, with slightly less or more than half of the justices on a court saying “no reasonable person could disagree with this interpretation, therefore it’s not ambiguous” and the other slightly more/less than half of judges saying reasonable people could disagree. By definition, one group is calling the other group unreasonable. Which by definition leads me to believe the judges aren’t actually applying the test they way they are saying they are and that generally the test for ambiguity is pretty useless.

  2. who cares what a demented pervert and misogynist like toobin thinks; why give him any attention at all?

    1. Just because he’s a demented pervert doesn’t mean that he can’t make well reasoned observations about the SC. I made the same sort of mistake the other day when David Petraeus appeared and I suggested that we didn’t need to hear from someone who had traded classified information for sexual favors and self-aggrandizement and then lied about it to the FBI and hid evidence under the insulation in his attic. But, it is true that Dave does have a little bit of experience fucking up Afghanistan. I guess it’s just a desire on my part for the media to find well informed
      commentators who are not also colossal douche bags.

      1. Is Toobin a demented pervert? (Genuine question.) My understanding was that he was masturbating on a Zoom meeting and accidentally exposed [heh] what he was doing. Is it your position that anyone who masturbates is demented and perverted? Is it that anyone who masturbates during an inappropriate time is demented/perverted? Or was it the getting caught that leads to your conclusion? (Or, did he do other things that earn him those labels?…which might be the case–I did not follow the matter closely at all.)

        I mean, if Toobin actually had intended to expose himself publicly, then I’m with you. If he does have a lengthy history of sexually inappropriate activities, then I might be with you–depending on what those are.

        But perverted and demented, based on this one incident? That seems a bit unchristian and draconian.

        1. 1: You’re assuming “only 1 incident”. “Only caught once” != “only did it once”

          2: Yes, someone who masturbates during meetings with others is a pervert

          3: Toobin screwed the daughter of (I believe) a colleague, and then pressured her to get an abortion when he got her pregnant. IMO, that qualifies as a “history of sexually inappropriate activities”

  3. Isn’t it the Court’s practice to issue per curiam decisions on emergency requests for injunctive relief? I seem to recall that coming up when the NYT’s Linda Greenhouse chided the Justices for being unwilling to put their names to a decision she disagreed with.

  4. Can’t someone ask Eugene or Sasha this question? Both of them clerked at SCOTUS. Surely they know how the court decides whether to issue a per curiam opinion. It doesn’t seem like the kind of thing that the court would keep confidential.

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