Back on March 26, 2007, SCOKYBLOG had this to say after viewing the Oral Argument in Dunn v. Felty (2005-SC-0295-DG):

SCOKYBLOG sees this one as an affirmance of the Court of Appeals. Our best guess is 5-2, with Justices Scott and Cunningham as the most-likely dissenters, and Justtice Noble as the most likely author of the majority Opinion.

Chalk another one up in the “correct prediction” column for SCOKYBLOG. The June renditions included a well-written-and-analyzed, unanimous Opinion of the Court by Justice McAnulty affirming the Court of Appeals and holding that Mr. Dunn had blown his statute of limitations.

Between now and the August renditions, SCOKYBLOG’s predictors will endeavor to get their hands on as many Oral Argument videotapes as possible and will go on record with additional predictions.

After musing over our incorrect prediction that Justice Noble would author the Court’s Opinion in Dunn v. Felty, SCOKYBLOG believes it appropriate to make as many excuses for that oversight as possible. So, to begin with, it’s exceedingly difficult to predict who will author an Opinion. Many times, a prediction about the Court’s overall result is little more than a blind guess, and predictions about individual justices’ leanings are even more suspect. (For example, from Oral Argument, it certainly looked as if Justices Cunningham and Scott might be willing to reverse the COA in Dunn v. Felty. The Opinion rendered, however, is unanimous. Maybe their initial views changed as a result of the Oral Argument. Maybe they initialy voted to dissent, but were persuaded by Justice McAnulty’s draft Opinion and decided to join instead. Maybe they were always of the view that the SCOKY should affirm the COA, but wanted to make the Appellee’s counsel work at little at Oral Argument. You never can tell.).

Of course, even if the coin lands on the right side and we correctly predict the Court’s result, and furthermore correctly assume that a given Justice is part of that numerical majority, trying to predict the ultimate author is a crap-shoot. Most of the time, our prediction boils down to “well, it’s probably going that way, and Justice X seemed to be leaning that direction and was the most vocal.” There are a number of other variables, however, that make such a prediction hazardous. Normally, the Chief Justice (who makes all case assignments in Oral Argument cases regardless of whether he is in the majority after the post-Oral Argument straw vote) makes an effort to distribute the case-load as evenly as possible. In other words, if there are 9 cases orally argued in a month, most Justices will probably end up with one assignment and a couple will end up with two. (A particularly clever Justice who found himself or herself without a case assignment as of the 11:00 a.m. Oral Argument on Friday morning could “duck” an assignment that month if he or she cast his or her “straw vote” contrary to the Court’s majority.) Much of the time, one or more Justices will volunteer to write the opinion (sometimes in an effort to avoid a real “stinker” of a case coming up later in the week), and the Chief Justice ends up assigning most of the cases (probably 75-85%) to a volunteer. (The remaining cases, which involve a disproportionate amount of “billboard law” and other mind-numbing issues, typically end up getting assigned to a particularly congenial Justice who is willing to “take one for the team,” or perhaps to a Justice who foolishly makes eye contact with the Chief at the wrong time.) So, to get back to the point regarding the difficulty of predicting the author of an Opinion, even if Justice X would be a good fit for a particular opinion, e.g., part of the straw-vote majority and interested enough in the issues in the case to consider volunteering, he or she may have his or her eye on another case for one reason or another. Sometimes, the Justice knows there’s a case later in the day or later in the week in which he or she led the fight for granting discretionary review or a case that would allow the Court to address one of his or her “pet issues.” There’s a real science to knowing when to say “I’d like to take a stab at writing that one, Chief.” If you do so on a case that you’re only lukewarm about, you might miss out on a case that really fascinates you. But, if you wait for the case that fascinates you, and end up in a dissenting position, you might end up saddled with some awful case involving the UCC or coal leases or the like.

So, we’ll continue to make authorship predictions when we feel moved to do so, but those predictions should be taken with a nano-grain of salt.