Now that arguments have ended for the term, the next seven weeks (starting on May 16) will focus primarily on issuing opinions in the cases heard over the past seven months. (There is also the small matter of deciding what cases to hear in the fall. In the three months of argument since Justice Scalia died, the Supreme Court accepted a grand total of seven cases for the fall — the average over the past decade is 17-18. With only twelve cases currently on the docket for the fall, there are approximately fifteen to twenty available argument slots. Given the delicate balance on the court, the Justices may be stingy with grants over the next two months.) There are currently, thirty-three cases still awaiting opinions.
It is still too early in the term to guess at who will have the significant opinions that still remain. While there are decision in most of the cases from October-January, the death of Justice Scalia scrambles the number of cases that we would expect each Justice to have from these months. (Justice Scalia would have been assigned at least one opinion in both months, but died before any of his December or January opinions were issued. Those opinions would have been re-assigned. Additionally, his death caused one of the January cases — the union dues case — to be affirmed on a 4-4- vote. We do not know if Justice Scalia had that opinion or if Justice Alito had that opinion. If Justice Alito had that opinion, he might not have been in the majority on the last case remaining from January.) As I have discussed in the past, not every case that the Supreme Court hears is politically sensitive or a close call. There are several potentially significant cases that will be a close call, and the absence of Justice Scalia may influence the results in these cases.
The oldest of the outstanding “political” cases is Fisher vs. University of Texas (a/k/a Fisher II). Because Justice Kagan worked on this case while she was Solicitor General, the absence of Justice Scalia will not prevent a decision. Instead, this case will be decided by seven Justices. The problem is whomever has this case (particular if Justice Scalia initially had this case) is going to be reluctant to make any major changes in the law on affirmative action by a 4-3 majority. Scalia would have given a 5-3 majority for an opinion strictly limiting the use of any type of extra consideration for racial minorities. Without Justice Scalia’s vote, the author of the opinion (probably Roberts or Kennedy) will probably find something wrong with how the Fifth Circuit analyzed the case and send it back down to give the Fifth Circuit another chance at the case.
The last case from the January argument is one of the two Puerto Rico sovereignty cases. I am not sure that the absence of Justice Scalia is going to make that big of a difference in the result. If the opinion was originally assigned to Justice Scalia, the reassignment of the case to one of the other justices might alter the tone of the opinion. This opinion has the difficult task of explaining that Puerto Rico’s current status is something beneath a state and that the Constitution only recognizes three types of political entities — states, territories, and tribes. Depending upon exactly what this opinion (and the Puerto Rico bankruptcy opinion) says, it is likely to pour gasoline on the always contentious debate in Puerto Rico about statehood vs. independence vs. maintaining the status quo.
The most significant outstanding case from February is the Texas abortion clinic case. Justice Scalia’s absence probably influences this case at the margin. This case will probably go down to the last day with multiple redrafts. Justice Kennedy is still technically the swing vote on this case (since a 4-4 decision would leave the Fifth Circuit decision intact). Justice Kennedy might be willing to strike down some of the provisions involved as going to far, but would probably want a state-friendly standard for reviewing challenges to restrictive state abortion laws. Whether Justice Kennedy can hold out for such a standard might depend upon how things look in terms of any replacement for Justice Scalia. There is a decent chance that this case might be scheduled for re-argument next Spring.
There are two potentially significant outstanding cases from March. First, there is the Virginia redistricting case. By law, the U.S. Supreme Court has to hear all Voting Rights cases on appeal, but the Supreme Court can simply summarily affirm without full briefing and argument. It is unclear exactly why this case got the full argument and opinion treatment. The issue involved is how much weight courts should give “incumbent protection” in deciding that the lines unfairly discriminate against minorities. (The districts drawn by the legislature packed minorities into one district — well beyond that needed to assure a minority-majority district — thereby keeping the neighboring Republican Congressmen safe. The lines drawn by the lower court will probably have the effect of flipping one Republican seat to the Democrats if the new lines go into effect for this election.) The death of Justice Scalia make it highly likely that the court-drawn lines will survive — probably in a 4-4 decision.
The other potentially significant case is the contraceptive mandate on the Affordable Care Act. Given that there is a circuit split, some decision needs to be reached. After the argument, the Supreme Court took the unusual step of requesting further briefing on the viability of some potential accommodations to the religious-affiliated groups bringing the case. The replies of the parties show how difficult it is to draw any lines on this issue that both satisfy the desire of the religious groups to block their employees from getting any contraceptives as a result of their employment and the belief of the federal government that access to contraceptives is an essential part of women’s health care. Re-argument next Spring remains a possibility.
The big case from April is the immigration case. My expectation is that we will see a very split opinion, but likely a 6-2 majority that Texas (and the other states) lack standing to bring the case. The split will be between the four Republican justices wanting a strict test that will make it difficult for states to bring these types of cases (with two holding that Texas meets even a very strict test) and the four Democratic justices wanting a looser test (but all holding that Texas does not even meet the loose test).
There are some other cases on less charged cases (at least as far as media attention is concerned) that could end up as a 4-4 split. What happens in these cases might depend upon how things look a month from now. If, in early June, it is looking like Trump is doomed and the Senate impasse shows signs of breaking, you might have some compromises to get 5-3 opinions or see a lot of cases set for re-argument. If it looks like there will not be a new justice until May 2017 (and it is unclear who will be the next president), there might be a lot of 4-4 decisions with the Justices deciding that resolving the legal issues can wait until the 2017 term (or later) when the next case presenting the same issue arises.
