As I noted in my post on Thursday’s decisions, we are nearing the end of the active part of the Supreme Court term. (Technically, the term starts in October, but the Supreme Court is in recess over the summer barring any emergency case.) While the Supreme Court does not list opinion days far in advance, they have fifteen argued cases left to decide. Based on past practice, we are likely looking at four to six opinion days over the next two weeks to wrap everything up — likely Monday of both weeks and Thursday of this week with the other dates depending on when things are ready.
The easy part of this post is that the Supreme Court has now wrapped up October and November. And we have most of the cases from December and January. But this year’s docket offers several complications. First, while the Supreme Court tries to keep each month’s opinion assignments balanced (and the term as a whole balanced), we have multiple months with fewer than nine opinions. Second, we have several unsigned opinions from December and two opinions that covered multiple argued cases. Third, Justice Barrett did not start until the November docket. Based on what we know, there should be six opinions per justice (54 signed opinions for the term.) As Justice Thomas has seven opinions, it looks like Justice Barrett will only have five opinions.
October and November had 18 cases which should have meant two opinions per justice which held true for every justice except Justice Breyer who had three opinions and Justice Barrett had one opinion which seems to reflect that Justice Breyer picked up the extra October opinion that would have gone to Justice Barrett. (Justice Breyer may end up with seven opinions and somebody may have lost an opinion in light of Justice Thomas’s seven opinions or the court might just have altered who got the extra case as the term went along.)
December, January, and February have eighteen opinions combined as do March and April. Speculating, it seems that each of those two segments will get each justice two assigned opinions, but that is not set in stone. And Justice Thomas did pick up three opinions in March and April which potentially implies that Justice Breyer will only have one opinion in the March and April segment. Other than Justice Breyer being ahead of the expected rolling number at the end of November and Justice Thomas finishing with one extra case (assuming he has no outstanding cases, none of the justices is ahead of the “expected” number of opinions at the end of any month so far (i.e. no more than 2 through November, no more than 3 through December, no more than four through February, no more than five through March).
Now to the remaining big cases.
From December, the sole case outstanding is Collins. This case is another of the conservative push back on the New Deal cases. One of the things that the Supreme Court ultimately accepted during the New Deal was the existence of independent agencies in which the appointed heads had some protection from discharge. This practice runs contrary to the conservative theory that Article II requires the president to have absolute power to discharge any agency head at any time. This case involves the Federal Home Financing Authority. The issues are similar to a recent case involving the Consumer Finance Protection Bureau and the results are likely to be the same — finding that the structure is invalid and that the president can discharge the director at will but not striking down any agency action. Based on each justice having two or three opinions by the end of December and three or four by the end of January and four by the end of February, it seems likely that this opinion is being written by Justice Alito but the extra case that Justice Breyer had from October and November leaves him in the mix (but more likely for the January case).
From January, you have a technical case involving bond in immigration cases. Assuming that Justice Alito got Collins, then the candidates for this opinion would be Justice Alito, Justice Kagan and Chief Justice Roberts (and potentially Justice Barrett). If somebody else got Collins, Justice Alito would almost certainly have this opinion. I would not be shocked if this case ends up with Justice Kagan.
February is where things get interest with three cases outstanding, and a lot depends on who got the January case. The current candidates for the February cases (assuming the four opinions per justice but maybe five for Justice Breyer and three for Justice Barrett) are Chief Justice Roberts, Justice Breyer, Justice Alito, and Justice Kagan. Whomever between Chief Justice Roberts, Justice Alito, and Justice Kagan gets the January opinion would be out of the mix.
The three cases from February each have some significance — one is a Fourth Amendment “hot pursuit” case, one is an appointments clause case involving the Patent Office and administrative judges (again a big issue for conservatives of who has to be confirmed by the Senate), and then there is the real biggie — Brnovich.
Brnovich involves the Voting Rights Act. Putting aside the nominal issue in the case — whether the specific rules in Arizona are valid — the real issue is the test that courts should apply. The Republicans want the test to be whether the restrictions are facially neutral which would permit many restrictions on the right to vote. The Democrats want to use something like the disparate impact test used for employment cases under which you consider whether the facially neutral rule has a different impact on minority communities than on white voters. A significant part of the argument revolves around the fact that the same rule could have a different impact on different states with Democrats saying that merely reflects the real world circumstances of voting and Republicans saying that, if an act is permitted by the Voting Rights Act in one state, it should be permitted by the Voting Rights Act in all states.
To use a real world example, in many states with expansive early voting, African-Americans have used the Sunday before the election to vote. In those states, a change to remove Sunday early voting would have a significant impact on voting by African-Americans. In a state with no early voting, it would be much harder to prove that a proposal that authorized Monday to Saturday early voting disadvantaged African-American voters.
My hunch is that Chief Justice Roberts has Brnovich. The likely opinion is not going to be good. But we still have the John Lewis Voting Rights Act to come from Congress later this year. Thus, Congress can fix this issue. For the other two cases, Justice Breyer could get either one and, depending on who got the January case and the result, both Justice Kagan and Justice Alito could easily have either opinion. (In other words, none of the three seem to be certain to be in the minority on either case with the likely result being unclear).
And if the December to February batch is sort of unclear, the March and April batch is very unclear as there are still ten cases to be decided. At this point, the only justice who seems to be out of the mix is Justice Thomas and maybe Justice Breyer (if he got one of the February cases). Both of the justices are clearly out of the mix for March, but everyone else is still in the mix for both months given that some of the justices will have multiple opinions in April.
From the four cases left from March, Cedar Point is the most politically significant involving whether a law giving labor organizers access to the workplace is a takings under the Fifth Amendment. Most of the media attention will be focused on Alston which concerns compensation for college athletes. As noted, everybody other than Justice Thomas and Justice Breyer are in the mix for these cases.
And that leaves April with six cases left. The two biggest are two free speech cases. Of the two, the most significant one is the case between California and two conservative interest groups — Americans for Prosperity and the Thomas More Law Center. California tax laws require non-profits to disclose the names of major donors as part of their tax returns. Officially, the purpose of the disclosure requirement is to prevent fraud, and the disclosures are supposed to be confidential. In the 1950s, the Supreme Court had held that the First Amendment prevented southern states from compelling the NAACP to disclose membership lists, and the conservative groups are relying on those decisions to support their challenge to California’s disclosure requirement. So while progressives might love to cause grief to Americans for Prosperity and the Koch brothers, the history of this line of cases is a pointed reminder that, whatever the Supreme Court lets California do, conservative states are likely to follow with similar laws aimed at progressive groups. My hunch is that the Supreme Court finds something wrong with the lower court’s ruling. The big issue is whether the Supreme Court simply establishes a test to apply to this type of law and directs the lower court to give the parties the opportunity to present additional evidence addressing the test or applies the test to the current record and finds that the law fails to meet that test.
The other free speech case is the “cheerleader case.” Back during the Vietnam War, the Supreme Court established standards for school regulations on student speech. Traditionally, a school’s authority over student speech was mostly limited to speech that occurred on-campus or at school-sponsored events. This case presents the issue of whether a school can sanction a student for school-related internet posts or, in other words, off-campus speech. The problem with this case is that it is unclear that the speech in question would merit a significant sanction even if it occurred on campus. The respondent in the case is a cheerleader who posted two items (one somewhat profane) putting down the school and the cheerleading program (and otherwise griping) when, in the annual tryouts, she failed to make the varsity squad and was left on the JV squad. She didn’t threaten anybody and merely said negative things about the program. Needless to say these posts made some other cheerleaders upset. The sanction for these posts was the cheerleader coach kicked the cheerleader off the cheer squad. In other words, a somewhat mild sanction for a somewhat mild infraction. But this case is the vehicle for deciding what rules should govern internet posts by students.
For both cases, one of the things to look for is how these decisions will fit into the growing Roberts Court First Amendment decisions. The Roberts Court has been very pro-free speech. As such the expectation is that both decisions will favor the speakers over the government. But the key thing will be what the opinions will allow the government to do. My hunch is that Chief Justice Roberts will have the opinion in Americans for Prosperity. With the number of cases still outstanding, it could be almost anybody other than Justice Thomas, but I think the Chief Justice will keep that one for himself.
As always at the end of a court term, one issue is whether Congress will adopt any fixes to the Supreme Court’s ruling on matters of statutory interpretation. Over the course of the term, the Supreme Court has issued some rulings that slightly relax the restrictions on people suing the police for misconduct, but the bar to such cases is still very high. Congress has been discussing these rules for the past year and may do something about them. Similarly, the Supreme Court declined to take a case involving the Selective Service statutes because Congress has been considering changing those statutes. And, as noted above, Congress is already considering changes to the Voting Rights Act to reinstate the preclearance requirements. A Supreme Court decision that narrowly interprets the anti-discrimination provisions of the Voting Rights Act would add another issue that needs to be addressed in that bill.
While the last third of the cases to be decided could alter the perception of this term, the gist of what has been decided so far is a continuation of a steady drift to the right. While there are some decisions that can be spun as a sharp break with the past, in cases in which the more liberal justices have been willing to accept a conservative result, they have generally been able to get two other justices to join them in keeping the current law mostly intact. While the results are not as good as they would have been with a Justice Garland and somebody willing to follow in the late Justice Ginsburg footsteps, they have generally not been a disaster. Of course, there are cases already set for the fall that may change that perception.
EDIT: Showing how hard it is to predict who is writing which opinion. Chief Justice Roberts did have an opinion from February but it was not Brnovich. Instead, he had the Appointments Clause case — a 4-1-3-1 case. The other two decisions from today were March cases — Justice Barrett on a class action securities case and Justice Gorsuch on the NCAA cases. My best guess is that Justice Barrett and Justice Gorsuch are now down to an April case
