Justice Sonia Sotomayor, who joined the Court last August, issued her first written opinion today, in the case of Mohawk Industries v. Carpenter. (Read the decision, which also was the first of the Court’s current term.) The case, involving when discovery orders related to the attorney-client privilege may be appealed, had not been closely followed by reporters. But the decision caused a small stir in the press room today, simply because it was the new justice’s first and because it was not fully signed by all eight of her colleagues. Justice Clarence Thomas concurred in part and filed a separate statement disagreeing with some of Sotomayor’s reasoning.
Justice Thomas’s move prompted some old hands in the Supreme Court press corps to believe a tradition of collegiality had been broken. By longstanding practice, the chief justice usually assigns the new justice a case that all nine agree on and that can be written up without much difficulty. It’s a courtesy that helps ease a new justice into ways of the marble cloister.
But this tradition has been broken before.
When I was doing research for my biography of Sandra Day O’Connor, Justice Ruth Bader Ginsburg recalled what happened to her shortly after she had taken her seat in 1993. Chief Justice William Rehnquist assigned Ginsburg, as her first opinion, a case involving the Employee Retirement Income Security Act, a complex federal law covering worker benefits. The Court was split 6-3 in the case, John Hancock Mutual Life Insurance v. Harris Trust & Savings Bank.
Ginsburg went to Justice O’Connor with a complaint about the break in usual practice. “Sandra, how can he do this to me?” Ginsburg said to O’Connor.
“Ruth, you just do it, and get your opinion in circulation before he makes the next set of assignments,” O’Connor told her.
Of O’Connor’s no-nonsense, no-pity response, Ginsburg told me, “That is so typical Sandra.”
Today, it’s difficult to imagine that Sotomayor is truly perturbed that Justice Thomas broke off from part of her opinion for the majority. What likely matters to her is that history will record that the very first signed opinion of the 2009-2010 term bears this notation: “Sotomayor, J., delivered the opinion of the Court.”