Yesterday, the Supreme Court decided Van Buren v. United States — an important case about the Computer Fraud and Abuse Act of 1986. I’ll leave it to others to discuss the decision.
I will address, however, a claim that I’ve seen in a number of places, viz., that Van Buren is “the first time [Justice] Breyer has assigned a majority opinion.” This claim rests on two premises. First, the rule that “the Chief Justice, or the most senior Justice in the majority if the Chief Justice is in the dissent, assigns a Justice in the majority to write the opinion of the Court.” And second, the fact that Justice Barrett wrote the majority opinion, joined by Justices Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, while Justice Thomas dissented, joined by the Chief Justice and Justice Alito. Put those two premises together and it follows that Breyer must have assigned Van Buren to Barrett, right?
No. The majority opinion is assigned during conference after oral argument. But the justices can change their positions. Thus, it is possible for the Chief Justice to be in the majority at conference — and so assign the majority opinion — but then afterwards not join the majority opinion. Like any of the justices, nothing prevents the Chief Justice from changing his mind after reviewing the proposed majority and dissenting opinions. It is also possible for the Chief Justice to be in the dissent at conference — and so not assign the majority opinion — but then afterwards join the majority opinion.
Accordingly, we cannot know whether Justice Breyer assigned Van Buren to Justice Barrett. Nor can we know whether Breyer has previously assigned a majority opinion that the Chief Justice eventually joined (though, given that Breyer has not been that senior for most of his career, that seems somewhat unlikely). To be clear, I am not saying that Justice Breyer didn’t assign Van Buren. But because this part of the process is confidential, my (very narrow) point is that we just can’t know for certain.*
* Indeed, my point is so narrow that I’m not sure it is even worth a blog post!