Can The Assigning Justice “Direct” That An Opinion Must Be Published Per Curiam?

Jeff Toobin wrote a new column titled “Clarence Thomas Is the new Chief Justice.” If only. The Chief remains firmly in charge whenever Justices Kavanaugh and Barrett follow along. It is surprising how few majority opinions Justice Thomas assigned this term. But one assertion Toobin made surprised me.

Roman Catholic Diocese split 5-4, with Roberts in dissent. As a result, Thomas could assign the majority opinion. But that opinion was an unsigned per curiam opinion. At the time, I speculated that Justice Alito was the primary author, as the decision largely tracked his Calvary Chapel dissent. But, because the opinion was per curiam, the authorship may never be known.

Toobin drew an inference:

With Roberts in the minority, Thomas assigned the opinion, directing that it be published “per curiam,” or by the court, which the Justices usually reserve for routine or non-controversial matters.

Can the assigning Justice “direct” that an opinion must be published per curiam? I had long assumed that choice was based on a consensus of the majority. In theory, at least, a Justice could dissent from the decision to publish the opinion per curiam. Unlikely in such a contentious case case, but still possible. Moreover, given the tight time constraints on the shadow docket, it is likely that several Justices may have contributed to the decision. Roman Catholic Diocese also had shades of Kavanaugh’s Calvary Chapel dissent. A per curiam label may have reflected the group effort.

I tend to think Toobin erred, but I welcome any corrections.

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