How many times does the most senior justice in the majority concur in judgement only?

[David Hume]

There may be some in the Burger Court, but any in more recent years?

[politicallefty]

In what sense? Do you mean in the strict sense or when a more senior Justice concurs (or joins a concurrence) outside of the majority?

[David Hume]

In what sense? Do you mean in the strict sense or when a more senior Justice concurs (or joins a concurrence) outside of the majority?

Like Roberts assigned the case to Alito, but join in judgement only. It has to be the most senior  justice who assigned the case.

[politicallefty]

In what sense? Do you mean in the strict sense or when a more senior Justice concurs (or joins a concurrence) outside of the majority?

Like Roberts assigned the case to Alito, but join in judgement only. It has to be the most senior  justice who assigned the case.

If that happened and there were five votes outside of the most senior Justice for a particular rationale, it's possible a different Justice writes. A Justice only writes for the majority so long as he or she can maintain at least five votes for said majority opinion. Between conference and the release of the opinion, a Justice assigned the majority opinion can lose the majority (there's speculation that this has happened a few times in recent years). In that case, it either becomes a plurality and is no longer the controlling opinion or just outright becomes a dissent. The assignment by the most senior Justice is merely a custom. Your example doesn't really make any sense in terms of outcomes.

[David Hume]

In what sense? Do you mean in the strict sense or when a more senior Justice concurs (or joins a concurrence) outside of the majority?

Like Roberts assigned the case to Alito, but join in judgement only. It has to be the most senior  justice who assigned the case.

If that happened and there were five votes outside of the most senior Justice for a particular rationale, it's possible a different Justice writes. A Justice only writes for the majority so long as he or she can maintain at least five votes for said majority opinion. Between conference and the release of the opinion, a Justice assigned the majority opinion can lose the majority (there's speculation that this has happened a few times in recent years). In that case, it either becomes a plurality and is no longer the controlling opinion or just outright becomes a dissent. The assignment by the most senior Justice is merely a custom. Your example doesn't really make any sense in terms of outcomes.

I don't understand your objection. Roberts assigned because he is the most senior in the majority. Alito may still hold 5 votes, so this would still be the opinion of the court. Roberts would join in judgement only. This may very well happen. I am just wondering if this has happened before.

[brucejoel99]

In what sense? Do you mean in the strict sense or when a more senior Justice concurs (or joins a concurrence) outside of the majority?

Like Roberts assigned the case to Alito, but join in judgement only. It has to be the most senior  justice who assigned the case.

If that happened and there were five votes outside of the most senior Justice for a particular rationale, it's possible a different Justice writes. A Justice only writes for the majority so long as he or she can maintain at least five votes for said majority opinion. Between conference and the release of the opinion, a Justice assigned the majority opinion can lose the majority (there's speculation that this has happened a few times in recent years). In that case, it either becomes a plurality and is no longer the controlling opinion or just outright becomes a dissent. The assignment by the most senior Justice is merely a custom. Your example doesn't really make any sense in terms of outcomes.

I don't understand your objection. Roberts assigned because he is the most senior in the majority. Alito may still hold 5 votes, so this would still be the opinion of the court. Roberts would join in judgement only. This may very well happen. I am just wondering if this has happened before.

As has already been stated in other threads on the topic, barring a real-life 800-D chess move, Roberts didn't assign the majority opinion in Dobbs to Alito: Thomas did, because what most likely occurred at the first post-Dobbs conference was the 5 non-Roberts conservatives making clear that they wanted a majority opinion which overturned Roe/Casey, & Roberts not joining them because he didn't (& still doesn't) wanna go that far; with Roberts not in the majority (to be abundantly clear: concurring in the judgement only isn't equivalent to being in the majority for the purposes of opinion assignment) making Thomas - who's presumably given himself NYSRPA II on the same basis - the one who assigned Dobbs to Alito.

[politicallefty]

The post above pretty much sums up my thoughts exactly. The five Justices to the right of Roberts seem intent on overturning Roe and Casey. That makes him effectively irrelevant in terms of the opinion of the Court unless one of those five peels away (hence the speculation that Roberts has been trying to do just that, namely pulling either or both of Kavanaugh and Barrett). If Roberts were to pull a Justice away, the majority opinion becomes a plurality and (assuming the three liberals dissent in full) Roberts's concurrence (joined by at least one other Justice from the original five) would be the controlling opinion.

I actually posted in another topic that one of my first thoughts upon finding out that Alito has Dobbs is that Thomas absolutely has to have NYSRPA II. My initial thoughts on the latter was that it was either Thomas or Barrett, but I suppose it was naïve to think someone with low seniority would have such a major case. Justices like Thomas and Alito have waited years for these cases and being able to write them in their particular ways too.

I do think your supposition about NYSRPA II is interesting. I hadn't really thought about it, but it is odd that Roberts would assign that case to Thomas as opposed to himself. It's possible though, especially if Thomas really wanted it. On the other hand, I can't think of a major high profile case written by Thomas. He's not one to trim his sails to get a majority opinion in a high profile case. It's a seriously bad omen if Roberts isn't in the majority opinion in either case.

[brucejoel99]

I do think your supposition about NYSRPA II is interesting. I hadn't really thought about it, but it is odd that Roberts would assign that case to Thomas as opposed to himself. It's possible though, especially if Thomas really wanted it. On the other hand, I can't think of a major high profile case written by Thomas. He's not one to trim his sails to get a majority opinion in a high profile case. It's a seriously bad omen if Roberts isn't in the majority opinion in either case.

To be fair, I am merely presuming that Thomas assigned NYSRPA II to himself in light of the fact that the votes for cert on gun rights weren't there for years before ACB's arrival on account of the non-Roberts conservatives not being confident that he'd go as far as them on gun rights, at least then. It's possible that they were scared of nothing & Roberts fully supports them in that case & assigned the opinion to Thomas accordingly, but that seems rather highly unlikely in practice.