As the calendar flips to June, the Supreme Court tends to move to center stage of political life in America.  While, technically, the annual term of the Supreme Court runs from October to September, the Supreme Court tries to finish issuing opinions in its cases by the end of June.  As a result, June has most of the opinions on the most divisive and politically important cases. 

At this point, we have some information on what to expect for this month.  We know the cases that were argued (as the last argument was on April 24). We also know which cases have been decided and which cases remain to be decided and when those cases were argued.  That is a key fact because of how the Supreme Court usually operates.  At the Supreme Court, cases are argued in a two-week argument session (followed by a period of at least two weeks without argument).  In each argument week, the cases are discussed at a weekly conference (typically on Friday) and a tentative vote is taken.  After that vote, the senior justice in the majority (either the Chief Justice or the longest serving Associate Justice) assigns a justice to write the case.  (With the current splits on the court, in most cases, the senior justice will be either Chief Justice Roberts or Justice Ginsburg.)  Regardless of who assigns the cases, the assigning justice tries to keep the assignments balanced within the argument session (no more than two per argument session) and over the term as a whole.  This year, the argument sessions ranged from six cases to thirteen cases.  When all of the argument sessions are combined, there were sixty-nine argued cases (actually seventy, but one was quickly dismissed without opinion) for which an opinion either has been or will be issued.  Thus, we expect each justice to have seven or eight opinions for the entire term. 

At this point in time, we have the most information on the first four argument sessions.  Typically, opinions are issued between three and five months after the argument; so the Supreme Court has issued opinions in most of the “early” cases.  In October, there were nine cases argued (technically ten, but one of the cases was argued during the first week before Justice Kavanaugh was on the court and was quickly set for reargument in January implying a 4-4 split).  Of those nine cases, eight have an opinion.  In November, there were twelve cases argued; and opinions have been issued in eleven cases.  In December, there were ten cases argued; and opinions have been issued in eight cases.  Finally, in January, there were eleven cases argued; and opinions have been issued in eight cases.  On the opposite side, we only have a total of three opinions from the cases argued in February and March and none from the April arguments.

Starting with October, the one case remaining is a big one.  The case involves the Sex Offender Registration and Notification Act.  When Congress passed this Act, Congress left it to the Attorney General to determine whether this Act applied to sex offenders who committed their crimes before the Act took effect.  Since, then the Attorney General has exercised that authority and provided that the Act applied to some types of sex offenses committed before the Act took effect.  The petitioner in this case is one of the offenders covered by the Attorney General’s decision.  In an attempt to avoid the registration requirement, petitioner has invoked the “non-delegation doctrine.”  This doctrine — barring the delegation of legislative powers to the executive branch — was frequently invoked prior to 1940 to invalidate many of the laws which gave administrative agencies the power to issue regulations.  Over the past eighty years, courts have almost always upheld statutes giving regulatory powers to administrative agencies by finding that the statutes contained enough guidance that the agencies were merely implementing the legislative decision rather than legislating.  At this point, the justice most likely to have this case is Justice Sotomayor — the only justice without an opinion from October.  Justice Sotomayor is not a likely candidate to reinvigorate the non-delegation doctrine; but many are concerned about the breadth of sex offender registration laws. 

With only one opinion left from November, we would normally have a good idea about which justice had that case.  However, all justices have already issued a November opinion.  The Chief Justice has issued two November opinions; so it is almost certain that he does not have the opinion.  Justice Thomas and Justice Breyer already have two January opinions; so it is unlikely that they will have two November opinions (as justices should have no more than five opinions from the first four months given the total number of cases).   The case is not politically insignificant although also not among the most important case in a term filled with significant cases.  The issue is the division of authority between the states and federal government in regulating uranium mining.  (It is clear that the federal government has exclusive authority on the processing of uranium, but it is unclear if that exclusive authority over the milling of uranium also precludes state regulations on the mining of uranium.)

The remaining two cases in December are both criminal law cases, but they both fall into recurring themes of the Roberts Court.  The first case requests the Supreme Court to reconsider (i.e. overrule) the long-established “dual sovereign” exception to the Double Jeopardy Clause.  In short, this exception says that, if criminal activity crosses state lines, both states can prosecute; and, if criminal activity is covered by both state and federal laws, both the state and the federal government can prosecute.  Normally, double jeopardy precludes two criminal trials for the same conduct.  In years past, the Supreme Court would not have even taken this case.  The current Supreme Court, however, appears to have little problem re-examining settled law and reversing decisions that have been followed for decades.  The other case involves the battle between tribal rights and the powers of state courts which has become an increasing share of the Supreme Court’s caseload in recent years.  For a period of time, the current state of Oklahoma was “Indian Territory” — an area composed primarily of reservations for Native American tribes that was closed to settlement.  Based on the provisions of the treaties establishing those reservations, respondent asserts that he should have been prosecuted for murder in federal court (as his offense was committed on land that was part of a reservation) rather than in state court (effectively voiding his state death sentence).  Given the history of Oklahoma, the ruling sought by respondent would transfer prosecution of murder in much of Oklahoma to the federal courts.  Such a ruling might also impact significant sections of several western states (although none to the same level as Oklahoma).  For the same reason as noted above with Justice Sotomayor, it is highly likely that Justice Alito has one of these two cases as the other eight justices have already written opinions for December.  Again, for similar reasons as above, we are pretty sure that Chief Justice Roberts, Justice Thomas, and Justice Breyer do not have the second case.  (The odds are pretty good that Justice Alito does not have both cases.) 

In January, there are three justices that do not yet have opinions and three cases remaining.  Those three justices are Chief Justice Roberts, Justice Alito, and Justice Gorsuch.  That line-up is probably bad news for another precedent.  Remember, the earlier mention of a case that was set for re-argument after Justice Kavanaugh was confirmed.  That case involves a thirty-five year-old precedent that essentially required condemnation/takings claims to be presented in state court first.  (In other words, if you thought that a state law effectively took away a substantial part of the value of your property, you had to make that claim in state court first for the state court to determine what if any value you lost and to order compensation for that lost.  Since the Constitution only requires that the government compensate you for a taking of your property, this rule effectively meant that Takings Clause issues had to be resolved in state court only with very limited federal review.)  For most of the past thirty-five years, conservatives have wanted to get the Supreme Court to take a second look at that rule.  Assuming that, in October, the spilt was 4-4 on the traditional liberal-conservative divide, the fact that only the conservative justices are still working on January opinions would suggest that Justice Kavanaugh provided the fifth vote to overturn this precedent. 

From February on, we have much less clue about which justice will get what opinion.  In February, there were only six arguments.  Based on what we know, five justices will have five opinions through January, and four justices will have only four opinions.  The four justices with four opinions will almost certainly have a February opinion, but two of the justices with five opinions will get their sixth opinion.  Those two justices will probably have one opinion in March and one opinion in April.  February’s big case is the American Legion case involving a very large cross built as a World War I memorial on land that has since become public land and whether the continued presence of that cross (easily seen by traffic on a nearby highway) violates the Establishment Clause.  This case has seen a lot of nonsensical arguments attempting to claim that the preeminent symbol of Christianity is actually a secular symbol representing all of the dead.  While such an argument is deeply offensive to both devout Christians and devout non-Christians, it evades any Establishment Clause issues.  The Establishment Clause has always been a problem for the courts.  While the Supreme Court has created a three-part test for such claims (the “Lemon test” named after the case that adopted it), the Supreme Court has not always followed that test and have used other tests in some cases.  Conservatives would like to officially lay the Lemon test to rest and adopt a new test that would be more open to the government supporting religions in some circumstances.  The problem is always where is the line between government treating religious groups the same as non-religious groups, and the government using its programs to promote some religions over others (or over non-belief). 

The pending cases from March include the three redistricting cases (one involving a racial gerrymander and two involving a partisan gerrymander).  Since the Supreme Court heard arguments on these cases, several other federal courts have found that they could determine when a partisan gerrymander goes to far.  Those rulings (in Ohio and Michigan) are currently on hold by order of the Supreme Court.  Whether the growing number of federal judges — appointed by presidents of both parties — who think that modern statistical tools make it possible to find the outlier maps that are clearly motivated by a desire to reduce the ability of the voters to determine which party controls the legislature can convince at least one conservative justice that these claims are legitimate remains to be seen.

The main case from April is the Census case.  Since the court heard arguments, evidence has been uncovered showing that the citizenship question on the census originated with a now-deceased Republican activist who worked extensively in the redistricting process and believed that the question would result in an erroneous census that would undercount minority population allowing the 2021 redistricting process to be skewed in favor of the Republican Party.  The trial court will be considering over the next several weeks whether to sanction the government attorneys who lied to the trial court about the origin of this question.  Whether the misleading evidence and arguments (including the arguments presented by the Solicitor General to the Supreme Court) matter to the conservative majority remains to be seen.  It is entirely possible that the final opinion will hold that the Census Bureau and the Commerce Department have unfettered discretion in designing the census and, thus, the real origin of the question and its purpose does not matter. 

Over the next month, we are going to get four opinions that deal with the core of politics.  Whether those opinions give a green light to attempts to skew the electoral process will significantly reflect on how future generations view the Roberts Court.  So far, the Roberts Court’s records on such cases seem to be about giving little protection to groups disadvantaged by the current rules and about maximizing the powers of the groups that are advantaged.  It is unlikely that history will view these decisions in a favorable light.

We are also going to get several opinions assessing the continued viability of doctrines from the Warren Court and the Burger Court.  While abortion is not one of the topics in current cases, it is unlikely that the Roberts Court will be able to avoid this issue in future terms.  How the Roberts Court treats existing law in the several cases this term asking it to overrule prior decisions will be a sign of what is likely to happen when abortion does take the center stage.

UPDATE: Nothing major this week, but the opinions released do fill in some of the gaps in assignments.   Justice Thomas issued his seventh opinion (a February case) and Justice Breyer issued his sixth opinion (an April case).  Based on this Justice Thomas should only have one opinion left which should be from an April case.  Justice Breyer should have two opinions left — one in March and the other from either February or April.   Justice Gorsuch issued an opinion in a January case leaving Chief Justice Roberts and Justice Alito with the last two January cases.  With 27 opinions still to go, this upcoming week (starting June 10) should be the week that the Supreme Court starts having two opinion days per week; so the pace will pick up very quickly.