 Following the oral argument , the Chief Justice assigned Justice John Paul Stevens to write the majority opinion and Justice William J. Brennan , Jr. asked Justice Thurgood Marshall to write the minority or dissenting opinion , based on the initial count of the justices ' views . Since Justice Potter Stewart did not participate in the case , it would take a 5 @-@ 3 vote to overturn the decision of the Circuit Court . Stevens circulated a memorandum stating that his decision would be to invalidate the tax - Chief Justice Warren Burger and Justice William Rehnquist immediately stated they would join his opinion . Justice Byron White stated that he would wait and see what the dissent said , and then indicated he would join the dissent in part . It also appeared that Justice Harry Blackmun was also going to write a separate dissent , but he also stated that he would wait to see Marshall 's opinion . At this point , the tribe had the votes to win on a 4 @-@ 4 vote , but the Court was close to being adjourned for the summer recess . On July 3 , 1981 , the Court notified the parties to <unk> the case on November 4 , 1981 . 
