We are entering what would normally be the home stretch of the annual Supreme Court term. And it is becoming relatively clear that most of the major opinions for this term will be coming from Chief Justice John Roberts.
As we have noted in past end-of-term posts, the U.S. Supreme Court attempts to balance the number of lead opinions that each chamber has. This balancing occurs in two ways: within each monthly two-week argument session and over the entire term. For example, if there are ten cases argued during a given month, one justice will be assigned two cases and the other justices will be assigned one case each. And a justice who gets two cases in one month will probably one get one case the next month.
By this time of the term, we usually have enough opinions issued to have a sense (not 100% certain because it is possible that a 5-4 case may flip after the first draft of the tentative majority opinion and the tentative dissent are circulated) of who probably has the case. This year, we have almost all of the cases from October, November, and January and all of the cases from December. While we only have about half of the cases from February (and obviously none from May), the look from the first four arguments is somewhat conclusive.
In October, we are down to one or two opinions. (The opinions are in the Title VII LBGTQ cases, There are some potential legal differences in the transgender case than in the other two homosexuality cases; so there might be two opinions rather than one.) Because one of the October cases was dismissed after argument, there are three justices who have not yet issued an October opinion. Those three are Chief Justice Roberts, Justice Ginsburg, and Justice Kavanaugh. My personal hunch is that, if there is a split decision, the opinions will probably be coming from Chief Justice Roberts and Justice Ginsburg. (The dismissed case probably turned on Justice Kavanaugh’s vote.) But I can’t see a line-up of votes on this Supreme Court in which Chief Justice Roberts isn’t writing an opinion in at least one of these cases.
In November, the only justice without an opinion is Chief Justice Roberts. So he is probably writing the opinion in the DACA cancellation case.
In January, there is one case involving whether state constitution establishment clauses violate the federal Free Exercise Clause. There are two justices without a January opinion — Chief Justice Roberts and Justice Breyer. Assuming that the above assumptions are correct, both the Chief Justice and Justice Breyer will have four opinions through December. Again, given the likely vote split on this issue, my hunch says that the Chief Justice will have this case.
As noted above, February is still a somewhat open question. We only have four opinions issued so far with five opinions left. The five justices without a February opinion are Chief Justice Roberts, Justice Thomas, Justice Breyer, Justice Alito, and Justice Sotomayor. My hunch is that — of the two major cases — the Chief Justice is more likely to take the case on the constitutionality of the Consumer Finance Bureau than the abortion case, but I would be shocked if both cases went to another justice.
Finally, there are no opinions from the May arguments yet (and some of those cases may spill into July). If I had to guess, based on the number of opinions so far. It seems like Justice Thomas will be the justice getting two opinions from the May setting, but until we see some of the opinions, it will be hard to guess who is getting what from May. Given the fact that the Chief Justice appears to have so many opinions from the first part of the year, he might punt and take one of the simpler May cases, but I would not be shocked if he took the electoral college cases or the Trump subpoena cases.
The good news for the past four years has been that, despite Mitch McConnell’s blatant partisan hijacking of a Supreme Court nomination in 2016, the balance of the court really hasn’t changed from what is was before the death of Justice Scalia. There are just enough weird cases that the “liberal” position can still get a fair share of the 5-4 decisions despite the conservative majority. But, if Trump is in the White House for another four years, Justice Ginsburg or Justice Breyer may have to step down. And, if that happens, it will be much harder to get favorable decisions in the most political of cases if Trump gets to pick the replacement.
