WASHINGTON – Supreme Court watchers were left scratching their heads when they learned Justice Neil Gorsuch was the author of Monday’s landmark LGBT rights ruling, but not because the appointee of President Donald Trump might have been expected to side with his conservative colleagues in dissent.
Rather, it was a matter of math.
Each of the nine Supreme Court justices usually writes at least one opinion for each month the court hears arguments. Gorsuch’s opinion was his second for October while three of his colleagues wrote nothing. That highly unusual lineup suggests something going on behind the scenes.
Gorsuch became the only justice other than retired Justice Anthony Kennedy to author a major high court ruling in favor of LGBT rights when he wrote the decision declaring workplace discrimination on the basis of sexual orientation or gender identity illegal under federal civil rights law. The 52-year-old justice earlier wrote the ruling requiring unanimous jury verdicts in state criminal cases.
The answer is obvious in one sense. He wrote opinions in both cases that attracted a majority of the court. But how he came to write them is a mystery.
After each month of arguments, which the court calls a sitting, Chief Justice John Roberts assigns the opinions for cases in which he is in the majority. Otherwise, the senior justice in the majority — usually either Clarence Thomas or Ruth Bader Ginsburg — decides who gets to write for the court. The justices work together to ensure there is a relatively even distribution of labor.
It seems unlikely, based on the usual practice, that Gorsuch would have been assigned both majority opinions in October, especially since Roberts and Ginsburg were two justices who didn't write at all from that month. Justice Brett Kavanaugh was the third.
One of those three justices certainly was working on an opinion in a case that settled before the court could issue a decision. But that still leaves two justices with nothing.