Just about everyone who’s argued before the Supreme Court of Virginia has tortured him- or her-self with the same mind game at one point or another. It usually starts with a chain of thought that goes something like this:
Wow, that was an intense argument. Justice X seemed really hostile. He was asking a ton of questions. I wonder if he’s been assigned the opinion? After all, he usually gets the corporate-law cases. But Justice Y seemed most familiar with the record. None of the briefs mentioned the colloquy at JA 1227. She wouldn’t have known to ask about it unless she’d gone through the entire record with a fine-toothed comb. And she wouldn’t have done that unless she’d been assigned the case. And Justice Y was friendly! If she’s got the opinion, then maybe there’s hope after all . . .
This internal monologue can kill time on the drive back from Richmond. And in the odd case it can even be fun. But it’s ultimately pointless for a number of reasons–several of which were illustrated by a terrific panel discussion that Jeffrey Breit moderated at this weekend’s VTLA annual meeting. The panel included Chief Justice Lemons, Justice Goodwyn, and Justice Mims, and its topic was “Supreme Court Thoughts and Muses.”
(Fun fact about each panelist that may or may not be true: !1) Mick Jagger once left a message for Chief Justice Lemons’ daughter on the home answering machine. (2) Like Tommy Lee Jones, Justice Goodwyn played football at Harvard but lacked the good sense to drop out and start a tech company. (3) Justice Mims’ middle name is “Cleveland.”).
So what did we learn from the panel?
Well, among many other things, the panelists gave us a behind-the-scenes look at the Court’s mechanics. The Chief Justice explained that he doesn’t really “assign” opinions. Instead, the justices fill a hat with slips of paper. Most are blank, but one is marked with an “x.” They pass the hat in order of seniority. The justice who draws the “x” is assigned the first opinion, and the rest of the opinions follow in order of seniority.
Until convinced otherwise, I will assume the justices perform this ritual by candlelight in full judicial regalia, including robes, and that the hat looks exactly like the Sorting Hat from Harry Potter.
Anyway, this ritual has two major implications: First, going into court week, each opinion has been assigned to a justice. And second, the popular conception that Justice So-and-So gets all of the opinions dealing with a certain topic is probably incorrect; if it’s true, then it’s totally by chance, and the Justice’s past assignments have little predictive value when it comes to forecasting her future assignments.
This leads back to our primary question: Is the most inquisitive justice at a given oral argument probably the one who has been assigned the opinion? As Justice Goodwyn explained, not necessarily. The Court’s internal processes add another layer of diabolical complication. After each day’s arguments, the Court holds a conference to discuss each case and vote on it. But here’s the catch: the person sitting to the right of the justice who has been assigned the opinion is the first to speak at the conference. Then the Court goes around the table, with each justice giving his or her thoughts. The justice assigned the case is the last to speak. By the time his turn comes around, he will know how everyone else on the Court voted.
So while Justice X may have been assigned your case, if Justice Y sits to his right in conference, then she may be your primary interlocutor at oral argument, human nature being what it is, because she has to speak first at conference.
Does this mean that you can game the system by looking at seating assignments on the bench? No, that would be too easy. Although the panel didn’t reach the point, it’s my understanding that the justices sitting next to each other on the bench are not the justices who will be sitting next to each other in conference. But that, I’m afraid, is a topic for another day.