Wednesday, June 3, 2020

Who will write the remaining major Supreme Court decisions?

By Josh Blackman - June 03, 2020 at 01:43PM

The Supreme Court generally gives each Justice roughly the same number of majority opinions. For example, in a given sitting (roughly a month), the Court may hear nine cases. Each Justice would be assigned one majority opinion. If there are more than nine cases in a sitting, invariably some Justices will get multiple assignments.

This practice allows us to use the process of elimination to guess who will write the majority opinion in outstanding cases. This guess work is often unreliable. In some cases, where a case flips–that is, a dissent becomes a majority opinion–a Justice will lose his or her assignment. But, speculate, we can.

In the October setting, nine cases were argued. Malvo, which involved juvenile life without parole, was dismissed from the docket. The Title VII cases–Bostock and Harris–will likely be consolidated with a single opinion. From that sitting, Justices Ginsburg, Kavanaugh, and Chief Justice Roberts have not yet written a majority opinion. One of those justices was likely assigned Malvo, but lost the case. I am skeptical the Chief would give the junior justice the Title VII cases. My prediction: Roberts writes both Bostock and Harris. And Kavanaugh lost Malvo.

In the October sitting, ten cases were argued. Only one case is outstanding, and one only Justice has not yet written a majority opinion. My prediction: Chief Justice Roberts will write the majority opinion in Regents, the DACA case.

In the November sitting, twelve cases were argued. NY Rifle & Pistol was decided per curiam. Roberts wrote twice from this sitting, so he is probably done. There are no more outstanding decisions from that session.

In the January sitting, eight cases were argued. Only Espinoza, the Montana religious school funding case, remains outstanding. Chief Justice Roberts and Justice Breyer have not written from that session. My prediction: Roberts writes the majority opinion. Though it is possible that Breyer, who split the difference in the Ten Commandments case, draws a majority.

Nine cases were argued in February. In theory, each Justices should get one decision. So far, Ginsburg, Gorsuch, and Kavanaugh wrote from that sitting. It is too early to predict the rest of the cases. But I'll predict that Roberts writes Seila Law.

Ten cases were argued in May. The faithless electors case will likely be consolidated in a single decision. (Though I think there are important distinctions between the cases). And the tax return cases will also be consolidated in a single decision. So there will only be eight majority opinions. One Justice will likely be left out. And we have two recusals, which helps us narrow it down. It is way too early to make any predictions. But I'll make some anyway.

  1. Roberts writes both tax-return cases, Mazars and Vance. Because of course he will.
  2. Thomas writes Barr v. American Association of Political Consultants–his NIFLA decisions suggests a very pro-Free Speech view in the corporate realm. I am also keen to see how he approaches severability, in light of Murphy.
  3. Ginsburg writes Booking.com, because she likes IP cases. And she can rule for her former clerk, Lisa Blatt, who argued it.
  4. Breyer writes both faithless electors case, because he likes Democracy cases. (Sotomayor is recused in the Colorado case).
  5. Alito writes the follow-up Little Sisters of the Poor case. (The original is always better than the sequel.)
  6. Sotomayor writes Open Society. (Kagan is recused).
  7. Gorsuch writes McGirt. The Court's only Westerner likes Indian law.
  8. Kavanaugh writes Guadalupe. He had a strong concurrence last year in the cross case.
  9. Kagan is left without a majority opinion.

These predictions are worth what you paid for them. It is going to be a long June. And maybe July.


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