Supreme Court 2016-17-Two Weeks Left

One of the unwritten rules of the Supreme Court is that, come hell or high water, the justices will get all of the opinions issued before the July 4th weekend.  (In the past, some justices actually maintained a summer home outside of D.C. and those justices were very keen on getting out of D.C. as soon as possible.  Even today, justices will spend a good part of the summer elsewhere giving presentations and lectures for various schools and groups.)  That will make for a very packed last two weeks.  It’s not just that the number of remaining opinions is slightly high, but the number is high after a very light term.  For the past decade or so, the Supreme Court has heard between 70 and 86 cases per term.  This year, they have only heard 64 cases.  The last two weeks of the terms have seen the court issuing between 9 and 17 opinions.  This year, we still have 17 cases waiting for opinions.  (The pace of grants of argument for the upcoming term is also a little light with 19 cases granted so far which would only take the Supreme Court through November but there tends to be a decent number of cases granted during the last two weeks of the term when the Justices run out of time to postpone making the decision to grant or deny argument in a case.)

Given the large number of cases, it is more likely than not that there will be multiple opinion dates during these two weeks.  In theory, all of the opinions could be issued on one day in each week — the decision on which opinions are final and ready to issue is made at the weekly conference (June 15 and June 22).  But last second “non-substantive” edits that delays the Court’s printshop from having all of  the opinions printed and the sheer number of opinions tends to result in multiple opinion days during this point of the term.  (In addition to the two regular conferences, there is always a wrap-up conference after the last opinion issues.  In the past, the wrap-up conference typically featured cases that had been “held” because they involved an issue raised in one of the argued cases.  Once the argued case has resolved the issue, the held cases can be sent back to the lower court — if necessary — to apply the ruling in the argued case.  In recent years, the practice of taking at discussing cases at two or more conferences before granting argument means that the wrap-up conference involves a final decision on several pending applications.)

As noted in past years, the Supreme Court has customs regarding the assignment of opinions that makes it somewhat possible to predict what Justice is most likely to have which opinion by this point of the term.  Of course, the number of outstanding opinions does make it a little bit harder this year.  The general rule of thumb is that the Supreme Court tries to keep the workload balanced.  With eight justices for the first six months of the term, that usually means that: 1) in any month with seven or fewer cases, no justice gets two opinions, and some justices do not have any opinions; 2) in any month with eight cases, each justice gets one opinion; and 3) in any month with nine or more cases, each justice gets at least one opinion, but no justice gets more than two opinions.  Additionally, this practice means that a justice who was skipped one month is likely to get two opinions in a following month and a justice who had two opinions in one month is likely to get skipped in a following month.  At this point, we do not know whether Justice Gorsuch will be getting one or two opinions from April (we already have one opinion from Justice Gorsuch).  If Justice Gorsuch only has one opinion, seven of the other justices will eight opinions and one will have seven opinions.  If Justice Gorsuch has two opinions, six of the other justices will have eight opinions and two will have seven opinions.  The two justices most likely to have only seven opinions would be the two junior justices — Justice Sotomayor and Justice Kagan — but there is always the possibility that the Chief might decide to count a complicated case as a two-fer to spread the burden of opinion-writing around.

Right now there is one case still outstanding from December — Jennings involving the federal statute on bonds in deportation cases.  Neither Chief Justice Roberts nor Justice Alito have issued an opinion from December.  Looking at the bigger picture, there were thirty-three cases heard between October and January.  Chief Justice Roberts has four opinions from that time frame (picking up two in one of the nine-case months) and Justice Alito currently only has two.  Given that Justice Breyer has five opinions from that time frame (leaving twenty-eight cases for the remaining justices or four per justice), it seems more likely that Justice Alito has the opinion in Jennings.  Given post-argument orders in this case, my projection is that the detainees will receive some type of bond hearings but not as much as the Ninth Circuit had granted.  There is also a significant possibility that the Supreme Court will order re-argument in light of that supplemental briefing and the addition of Justice Gorsuch since the argument.

There are still three cases outstanding from January.  The biggest of the three is Lee involving whether the First Amendment bars the Patent Office from denying trademarks based on the offensive content of the trademark (here an Asian-American band calling themselves “The Slants,” but in another pending case a group of wealthy, mostly white males, calling their sports team “The Redskins”).  There are also the cases about the vagueness of one of the categories of individuals eligible for deportation (i.e. it is allegedly unclear on which criminal offenses qualify) and a civil rights case about the post 9-11 arrests of Muslims.  The three justices who do not yet have a January opinion (and thus should have these cases) are Justice Kennedy, Justice Thomas, and Justice Alito.  More likely than not Justice Kennedy has the trademark/First Amendment case and Justice Thomas has the immigration case, but they could be flipped.

In February, there are two cases outstanding.  One involves a cross border shooting by the border patrol and the other involves the First Amendment and internet restrictions on a sex offender.  Three justices do not have any opinion from February — Justice Breyer, Justice Kennedy, and Justice Alito.  Given that Breyer already has five opinions from October through November and that all justices should be evened up at five opinions per justice through the February sitting, it is more likely than not that these cases have gone to Justice Kennedy and Justice Alito.  The cross-border shooting may be a four-four tie and be scheduled for re-argument.  If not, my hunch is that Justice Kennedy has the cross-border shooting case and Justice Alito has the First Amendment case.

March and April are the problem months for predicting (eleven cases total outstanding).  Justice Kennedy should have one of the three left in March (my hunch is Lee on the impact of immigration consequences on the validity of a plea).  Justice Alito already has two from March and one from April and — assuming that the projections regarding December through February are accurate — should have no case from either month.  If Justice Sotomayor is one of the (one or two) justices with seven opinions, she has already issued seven opinions.   Of the remaining six Justices (other than Justice Gorsuch), Chief Justice Roberts is likely to have two outstanding opinions with one being from April (my hunch is that one of the two is Trinity Lutheran on the free exercise and whether states have to provide funding to churches for secular purposes).  Besides his March opinion, Justice Kennedy should have an April opinion and an extra opinion in either March or April.  Justice Thomas has already issued six opinions (which would be seven with the expected January opinion) but could have one more opinion from March or April (looking at what’s left, the issue of what qualifies as a material misrepresentation in citizenship applications could be the case assigned to Justice Thomas).   Justice Ginsburg is at seven opinions, but could have one more from either March or April.  Justice Breyer should have two opinions left — at least one from April.  Justice Kagan should have one opinion in April (which would take her to seven opinions for the term and, for the reasons noted above, as the most junior of the justices who sat for the entire term, is most likely to only have seven opinions).

Some of the cases involve poltically-explosive issues like immigration and international relations.  Assuming that Justice Gorsuch does not have any additional opinions, the four Democratic justices are likely to have only five of the cases compared to twelve for the Republican justices.  If Justice Gorsuch does have an additional opinion, that allocation would be four and thirteen.


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One thought on “Supreme Court 2016-17-Two Weeks Left

  1. tmess2 Post author

    Just when you think you have a clue, the opinions come out and disrupt everything. Five opinions handed down today — two by Justice Alito (Including the patent case), two by Justice Kennedy, and one by Justice Breyer. One of Justice Alito’s two opinions is from April giving him four from the last two months and leaving him with probably no more than one opinion — from either December of February. After today’s opinions, there is one case left from December (immigration), one case left from January (immigration), and one case left from February (cross-border shooting). Additionally, one of the three cases left from March concerns immigration and there is the president’s application for stay on the travel ban. Yes, the theme of the next ten days at the U.S. Supreme Court will be immigration.

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