Because the Supreme Court has a custom of publishing opinions in the same term as the oral argument on a case and the justices like to wrap up their work before July 4, June is always an active month at the Supreme Court — the legal equivalent of an everything must go closeout sale. Because during the rest of the year, the Supreme Court issues decisions as the opinions are ready for release, the June opinions reflect two groups of cases. First, there are the cases from late in the year — March and April primarily — for which a June decision would reflect a somewhat normal opinion pace. Even for a unanimous decision, it takes time to write an opinion, and sixty days is somewhat the norm even for unanimous opinion. Second, there are the difficult cases. While sixty days from argument to opinion is a good pace when everyone agrees, if other justices want to write an opinion (dissenting or concurring) in response to the initial opinion that extends things considerably — particularly if the original author revises their draft to respond to the other opinions as sometimes happens.
This year’s caseload for June is somewhat on the high end for recent years with 29 cases still pending. (For now the Supreme Court is just issuing cases on Monday, but, at some point this month, the Supreme Court will add additional days each week. Needing to issue seven cases per week, my hunch is that they will go to two days per week starting June 11, but they might hold off to June 18.) While there have been other years with more cases still pending at this point in time, what makes this year exceptional is the low number of cases decided. The Supreme Court only had 63 arguments this year, reflecting the continued decline in accepting cases. Of those 63 cases, two were dismissed meaning that the Supreme Court has only decided 32 argued cases this year. As would be expected, the Supreme Court has decided most of the cases from argued between October and January — 28 decisions out of 34 cases. Of the twenty-nine cases argued in February, March, and April, the Supreme Court has dismissed two cases and decided four cases. Because the Supreme Court tries to balance out opinion assignments from each argument session, that means that there is some clue as to who is handling the pending cases from the first four argument sessions, but very little clue as to the last three sessions.
From October, there is only one case left and it is bigly important — Gill vs. Whitford on partisan gerrymandering. Based on the other opinions from October, it appears that Chief Justice Roberts got the initial assignment on the case. Normally, that would be a bad sign for those who believe that the Supreme Court has some role to play in assuring fair elections. However, after the initial conference, the Supreme Court did accept a second case on partisan gerrymandering. I can also see a situation in which the majority saw problems with the standard used by the panel but could not agree on what the standard should be. That split would allow Chief Justice Roberts to assign the case to himself but could lead to a situation (like the last time that the Supreme Court considered this issue) in which there was no majority opinion. Or the argument in the second case may have clarified issues resulting in one of the other justices now having the majority opinion.
There are no cases still pending from November, but there are two cases still pending from December. One case (Carpenter) involves the standard governing government requests for cell phone records (particular those records showing which tower was used by the cell phone which can be used to place a suspect near the crime scene). The other (Masterpiece Cake) involves whether states have to permit service providers to discriminate based on sexual orientation when the service provider asserts that they have a religious belief implicated by providing the service. Based on the other opinions issued from the December argument session, it is most likely that these two cases were assigned to Chief Justice Roberts and Justice Kennedy. On the cell phone case, it probably does not matter which justice is writing the opinion. Both are equally likely to support some solution that includes some protection for suspects but permits the government to obtain those records in most cases. While both have more often than not voted in favor of protecting free speech and free exercise rights, Justice Kennedy has been much more likely to vote in favor of LGBT rights. In other words, if Chief Justice Roberts has the opinions, then the baker is very likely to win. If Justice Kennedy has the opinion, then it could go either way.
The last month in which we can make any decent prediction about opinions is January. January has three cases remaining (out of nine argued) and three justices do not yet have a January opinion. The three remaining cases from January have very different significance to non-parties. One is an original jurisdiction water dispute between Florida and Georgia; one involves whether military judges can both serve on the court that handles military appeals and also on the panel that would hear any appeal if there is ever a trial by the military commission for the inmates at Guantanamo; and one involves the removal of registered voters from the voter roll in Ohio. The three justices who are likely to have these three cases are Justice Breyer, Justice Alito, and Justice Kagan. Given that the other water right case from January went to Justice Gorsuch, Justice Kagan (as second most junior) is a good candidate to get the water rights case. Given the number of significant criminal justice decisions in January (three — with the opinions written by Justice Kennedy, Justice Ginsburg, and Justice Sotomayor), I can see how either of these two cases could have been assigned to Justice Breyer or Justice Alito as both involve questions of statutory interpretation. As with the December opinions, I don’t think it matters to the outcome which justice gets the military appeals opinion. Given how long it is taking, there is probably a split, but it is not necessarily along liberal-conservative lines and both Justice Breyer and Justice Alito could be in the majority on that case. The voting case (Husted) is very likely to be a liberal-conservative split with Chief Justice Robert and Justice Kennedy controlling which side won.
For the cases argued in February or later, there is simply not enough information to guess who is writing the opinion. With the two dismissed cases (out of nine argued) in February, we will not know until we get the opinions who has what case (although we will know who does not have the remaining cases as each opinion gets published). For now, we just have an opinion from Justice Breyer. The biggest case remaining from January (Janus) involves the First Amendment and mandatory union dues for public employees. Given that the current law probably only survived due to the death of Justice Scalia, most people expect that the Supreme Court will strike another blow against unions. There are some other potentially significant First Amendment cases from February — Mansky on political apparel at polling places, and Lozman on whether a person can assert a claim of retaliatory arrest for political activity if the arrest would otherwise be legal.
From March, there have been two opinions issued from eight cases argued. As such, we know that Chief Justice Roberts and Justice Gorsuch probably do not have any of the six remaining cases. Because at least one justice will not have an opinion from March, it will be impossible to predict who has any particular case. The two major cases from March is the California case on mandatory disclosures by “pregnancy resource centers” and the Maryland partisan gerrymander case. In the past, the Supreme Court has approved of laws imposing mandatory disclosure requirements of abortion providers, but the California case involves mandatory disclosures from medical and pseudo-medical facilities that are pro-life. It is likely that some of the disclosures will not survive, and the big issue is whether the Supreme Court will call into question or overrule some of those earlier decisions. As noted above, the fact that the Supreme Court heard arguments in a second partisan gerrymander case implies that there was not a consensus after the first case. The big question is whether this second case led to the first case being reassigned to one justice who will write opinions in both cases. Again, I would not be surprised by the majority finding some flaws with the decisions of the trial court panel, but no opinion getting a majority of justices supporting a particular legal test that governs this type of case. That leads to one of the minor cases from March (Hughes) in which the Supreme Court is reconsidering the standard that lower courts should use when figuring out the test created when there is no majority opinion in a case.
Lastly, there is April. April is one of two months (December was the other) in which there were more than nine cases argued. For April, part of the guessing involves the total cases for the year. With 63 argued cases, each justice should have gotten seven opinions total for the year. From October to December, there were twenty-five cases, and it appears that Justice Kennedy and Chief Justice Roberts will only have two cases from the first three months. Thus, they are likely to have two each from April. Whichever justice does not have an opinion from March could get the other extra case from April, but we will not know whom that justice is until we get a second opinion from a justice in April or all of the March opinions. Additionally, we do not know the impact of the two dismissed cases from February. As they were not immediately dismissed, the cases were probably assigned to a justice (and thus implicitly count toward the seven).
There are several significant cases from April. Obviously at the top of the list is the Muslim travel ban case. Also of significance on the immigration issue (Pereira) involves what qualifies as a valid notice to appear (the document served on a deportable immigrant that starts the deportation case) as it impacts whether a legal immigrant has enough time in the United States to qualify for relief from deportation. While partially a technical issue, Lucia involves whether administrative law judges are “officers” of the United States subject to the appointments clause (Senate confirmation unless other officers are authorized by statute to appoint the “inferior” officer). Given that the process for appointing most administrative law judges does not comply with the appointments clause, this challenge is a way for regulated parties to basically block administrative enforcement proceedings. Wayfair is a request by states for the Supreme Court to reconsider its rule on when a state can impose a sales tax on catalog/internet sales. Finally, Abbot is a racial gerrymander case.
Abbot has been buried a little by the primary focus on partisan gerrymandering, but it involves what could be a significant issue for the next round of redistricting. When a court finds that it is likely that a redistricting plan is invalid, it can draw an interim plan pending a full hearing on all of the claims (or legislative action fixing the invalid plan). In drawing the interim plan, particularly as the court has not made a final determination, it is supposed to make the minimal changes necessary to remedy the identified flaws in the original map. After redistricting in 2011, the district court found problems with the initial plan and adopted an interim plan. Texas, wanting to keep as much of its original discriminatory plan in place as possible, passed a new map based on the approved interim plan. Texas now wants to claim that their adoption of the interim plan protects them from any further challenges to its map. The groups challenging the new maps note the restrictions — both substantive and time — that limit an interim map and argue that, because an interim map is still influenced by the original discriminatory map, they should be able to argue that the interim map did not completely cure the original violation and still reflects an intent to discriminate. How the court maneuvers between these two positions will influence what happens in the next round of redistricting.
In short, out of twenty-nine cases, there are four voting cases (three redistricting and one registration), two immigration cases, one abortion case, one LGBT rights case, and one major labor case. The results will have a major influence on voters, women, workers, immigrants, and the LGBT community.
