The United States Law Week

Kavanaugh’s First Opinion Straightforward, Unanimous

Jan. 8, 2019, 7:31 PM

Carrying on an informal tradition, Justice Brett Kavanaugh’s first opinion for the U.S. Supreme Court was straightforward and joined by all of the justices.

The eight-page opinion in Henry Schein, Inc. v. Archer and White Sales, Inc. took 71 days to turn around, having been argued in late October weeks after arriving at the court after a searing confirmation battle.

The relatively fast turn around was likely due in part to the uncomplicated nature of the dispute, which dealt with a single exception to the Federal Arbitration Act.

That was probably no coincidence.

New justices are often assigned a “one-issue, unanimous opinion to write” for their first majority opinion, Justice Ruth Bader Ginsburg said in 2014, calling the practice a high court “legend.”

But, as Ginsburg knows, there are exceptions.

Justices Stephen G. Breyer and Elena Kagan—along with Ginsburg herself—were all assigned non-unanimous opinions for their high court debuts.

‘Rotten Assignment’

The most senior justices in the majority decide who writes a decision.

Ginsburg described her first 6-3 majority opinion assignment from then-Chief Justice William Rehnquist in a pension case as “rotten.”

That margin is the worst of all the current justices’ debut opinions. Justices Sandra Day O’Connor, Anthony Kennedy, and Clarence Thomas dissented from her opinion in December 1993.

Breyer fared only a little bit better in January 1995 with a 7-2 opinion also in an arbitration matter. The dissenters there were Thomas and Justice Antonin Scalia.

Ginsburg’s and Breyer’s first actual Supreme Court opinions weren’t majority ones at all. Breyer dissented in a hearsay case just over a week before he handed down his first majority opinion. Ginsburg filed a short concurrence in a civil rights action over a month before her majority debut.

Kagan rounds out the only other sitting justice to have written a non-unanimous opinion for her first Supreme Court majority. Scalia tripped her up by dissenting in an 8-1 bankruptcy decision in January 2011.

The remaining six justices’ first majority opinions were 9-0.

Concurring In Part

But while all the Republican-appointed justices—Chief Justice John G. Roberts Jr. and Justices Thomas, Samuel A. Alito Jr., Neil Gorsuch, and Kavanaugh—wrote 9-0 decisions that were joined by all justices in full, Justice Sonia Sotomayor wasn’t so lucky.

Thomas refused to sign on to all of Sotomayor’s jurisdiction decision. Thomas filed a concurring opinion, saying he agreed with only part of Sotomayor’s reasoning.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com