Walter's post raises an interesting issue about Justice Steven's use of the assigning power to try to keep a wobbly Justice on board. He may have learned a lesson in that regard from October Term 1999's Boy Scouts of America v. Dale.
There's some circumstantial evidence that Justice Stevens was writing the majority opinion in Dale that would have held that the Boy Scouts did not have a First Amendment free association right to exclude gay scoutmasters, but lost the majority opinion to Chief Justice Rehnquist after one of the Associate Justices changed his or her vote. (Stevens had no majority opinion from that sitting; Rehnquist had two, and the other one was the majority opinion in the Miranda blockbuster Dickerson v. United States; and to my eyes at least, Stevens' dissent, with its detailed statement of facts, reads like a converted majority opinion.)
But it's unclear to me how well that works: the Blackmun papers indicate that Justice Kennedy switched sides in Lee v. Weisman while writing the majority opinion that Chief Justice Rehnquist had assigned to him. — John Elwood
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