This past week was a busy week with the justices issuing eleven opinions which means that there are only five cases left to be decided — two of which are extremely significant.
As discussed in last week’s post, the Supreme Court tries to keep assignments to each justice balanced both within each month and as the term progresses. That gives us a clue as to which justice could have an opinion. But within each month, once you have identified the candidates, it is pure speculation as to which justice seems most likely to have the opinion. And as we have already seen several times this term, trying to guess which justice will get assigned the opinion from the potential candidate will often be wrong. For example, last week, I guessed that Chief Justice Roberts was most likely to have Brnovich (the voting rights case) from February. While the Chief Justice did have a February opinion, it ended up being Arthex — a patent case involving the Appointments clause. Similarly, many had the Chief Justice writing the Obamacare case from November with the Justice Alito writing Fulton, but Justice Breyer got the Obamacare case and the Chief Justice got Fulton.
The big question is how many opinions each justice will get. With fifty-four opinions and nine justices, each justice in theory should have six opinions. But Justice Barrett started one month late. Currently, Justice Thomas has seven opinions which means that, at least one justice should have five opinions). So far, Justice Barrett has been one opinion behind the pace for the entire term (one through November, three through February). As such it seems like Justice Barrett will end up with five opinions for the term with Justice Thomas having the extra opinion and the remaining justices having six opinions each. The problem with that theory is that Justice Breyer had the extra opinion in October/November and Justice Thomas did not pick up the extra opinion until April. So does Justice Breyer still have one opinion left (in which case he is due for one in the December-February period and some other justice besides Justice Barrett only has five opinions)? Or did that extra opinion migrate over the course of the term (in which case any justice with only five opinions for the term could be the justice who had the extra opinion at the end of February)?
The answer to that alternative is crucial. At the present time, Justice Alito is due for one opinion in January (the immigrant bond case) or February (Brnovich). Which one Justice Alito has will impact who could have the other case. If Justice Breyer kept the extra case through the entire term, Justice Breyer is likely to have Brnovich with Justice Alito having the immigrant bond case. If Justice Breyer did not keep the extra case through the entire term — Justice Alito could have either or both of the cases. Right now, the candidates for the January case are Chief Justice Roberts, Justice Alito, Justice Sotomayor, Justice Kagan, and Justice Barrett; and the candidates for the February case are Justice Breyer, Justice Alito, and Justice Kavanaugh.
Having noted the above, it seems less likely that the Chief Justice has the January opinion. At the present time, he has no opinions for April (and each justice should have at least one April opinion). Similarly, Justice Barrett also lacks an April opinion and seems likely to end up with only one more opinion for the term. And Justice Breyer, Justice Sotomayor, and Justice Kavanaugh already have six opinions. That would seem to imply that Justice Alito has Brnovich unless Justice Breyer or Justice Kavanaugh has seven opinions and a second justice ended up with only five opinions (perhaps being the actual author of the per curiam census opinion — but there are no good candidates for being that justice). That would leave either Justice Kagan or Justice Alito as the author of the immigration bond opinion with the other justice picking up one of the three cases from April.
And as the above paragraph suggest, the three April opinions are likely to go to the Chief Justice, Justice Barrett, and whichever one of Justice Kagan and Justice Alito does not get the January opinion. From the three cases in April, the one that is most significant is the Americans for Prosperity case. With this being a Free Speech case, my hunch is that the Chief Justice has this case. I can also see that case going to whichever of Justice Kagan or Justice Alito did not get the January case depending on how far the Supreme Court is intending to go (Justice Kagan being more likely for a narrow opinion and Justice Alito if the Supreme Court is intending to write a very broad opinion). The other two cases are a patent case (a good candidate for Justice Barrett’s April opinion) and a technical takings case (involving the ability of the government to delegate the power to exercise eminent domain).
At the present time, we do not know when the last opinions will be issued. As of now, the Supreme Court has an order date for Monday but has not indicated that they will be issuing opinions on Monday. Given the pace of release so far, it looks likely that there will be two opinion days next week. If none are issued on Monday, then the likely opinion days are Tuesday and either Wednesday or Thursday. If opinions are issued on Monday, then any of the other three days could be the final opinion day. I am doubtful that the Supreme Court will wait until Friday because they have a wrap-up conference after the last opinions are issued, and the justices will probably want to get out of town for the holiday weekend as soon as possible.
While I will have some posts later this weekend on this week’s opinions, the tendency so far does not bode well for decent opinions in either Brnovich or Americans for Prosperity. This Court is very pro-Free Speech and very restrictive on voting rights. Maybe I will be pleasantly surprised, but given the likely authors of these two opinions, I am very pessimistic.
UPDATE:
The opinion days for this week are yesterday (Tuesday) and tomorrow (Thursday). Yesterday, we got everything but Brnovich and Americans for Prosperity. Justice Alito had the January immigration case and Justice Kagan and the Chief Justice had the two April opinions. Right now, there are two predominant theories about case assignment. Theory 1 is that Justice Alito has Brnovich and Justice Barrett has Americans for Prosperity. The weirdness of that alternative is that the “extra” opinion due to Justice Barrett’s late start would have migrated from Justice Breyer (3 in October-November with only one in December-February) to Justice Alito (3 in December-February with only 1 in March-April) to Justice Thomas (3 in March-April) and would have a first-year justice writing what is expected to be a major decision. Theory 2 is that Justice Breyer has Brnovich and Justice Alito has Americans for Prosperity. The problem with that is that Justice Thomas’s three March-April opinions were unanimous or near unanimous and issued rather quickly; so, it is unclear how Justice Barrett or Justice Alito (or any other justice) would have “lost” an opinion assignment to Justice Thomas.
