As we have discussed for the past several weeks, the Supreme Court is nearing the end of its term.  After two opinion days this past week, we are down to ten cases left on the docket (or eight if you treat the two Affirmative Action cases and two student loan cases as one case each).  At this point in time, we know that Tuesday will be an opinion release day.  It is almost certain that there will be opinions on Wednesday or Thursday (or maybe both days).

As noted in past posts, the Supreme Court tries to keep things balanced within each month (i.e. if there are fewer than nine cases to be decided from one of the “monthly” argument sessions, it is highly unlikely that any justice will be assigned multiple opinion) and across the term as a whole.  In the past weeks, we still had enough cases left undecided from March and April to leave things murky.  But things are now looking very clear (with the understanding that authorship can shift if the assigned justice loses the majority or a case gets dismissed).  But none of the cases issued so far look to have flipped and the one dismissed case was not pending long enough to get assigned.

That balance for the term is key for the projection for November and February.  We are likely looking at a total number of opinions for the term in the mid-fifties.  That means that no justice should have more than seven opinions for the term, and, if any justice has seven opinions, the rest should have six opinions.

As noted previously, the Supreme Court has wrapped up its work for October.  November is the first month from which we are still expecting additional opinions.  There are three cases left from November (the two affirmative action cases and a case on state court jurisdiction over out-of-state corporations).  There are also three justices without opinions from November — Chief Justice Roberts, Justice Alito, and Justice Kavanaugh.  Of those three, Justice Kavanaugh already has seven opinions for the term.  That implies that there will be only two signed opinions coming from those three cases.  My hunch is that the Chief Justice will be issuing a 6-3 opinion in the North Carolina affirmative action case striking down affirmative action in college admissions.  There is a slim chance that, like in last year’s abortion deciision, that the Chief Justice tried to argue for some type of compromise position that would merely have narrowed the scope of affirmative action which would mean that, once again, Justice Alito will issue an opinion overturning settled precedent.  My expectation is that we will then get an unsigned opinion in the Harvard case noting that the civil rights laws that apply to education incorporate the Equal Protection Clause and, thus, affirmative action is also not allowed at private colleges.  The Harvard case will probably see a separate opinion from Justice Sotomayor and Justice Kagan saying that they agree that the civil rights law, at the very least, incorporate the Equal Protection Clause but disagree that the Equal Protection Clause bars affirmative action for the reasons stated in the dissent (probably written by Justice Jackson) in the North Carolina case.  Whomever between the Chief Justice and Justice Alito does not have the affirmative action case will have the state court jurisdiction case.

In December, we have two cases — the North Carolina redistricting case and the civil rights case involving the refusal to provide flowers for a same-sex wedding.  There are also two justices without opinions from December — the Chief Justice and Justice Gorsuch.  My hunch is that the Chief Justice had the redistricting case.  But, it’s also likely that the opinion will now be an unsigned opinion dismissing the case (with some separate opinions explaining why the Supreme Court should or should not reach the merits or commenting on the merits) in light of the North Carolina Supreme Court rehearing the case and reversing its finding that the legislature engaged in a rather extreme partisan gerrymander.  The civil rights case probably went to Justice Gorsuch.  He has some cover on this case, having written the case several years ago extending civil rights protection in employment to transgender individuals.  Again, given that prior decision, there is a slim chance that Justice Gorsuch was part of a 5-4 minority and that he has the North Carolina redistricting case.

We are done with cases from January.  There are two cases remaining from February — the two student loan cases.  Here the controlling facts are the January assignments and the total number of cases for the term.  Between January and February, there are (potentially) eleven opinions.  Two justices — Justice Thomas and Justice Kavanaugh — have two opinions from those two months and two justices — the Chief Justice and Justice Alito have zero so far.  In addition, both the Chief Justice and Justice Alito need an opinion from February to get to six opinions for the term (barring something weird happening with the March and April assignments).  So my hunch is that we will get two opinions from the student loan cases.  Based on this week’s opinions, I do not see how the Supreme Court could find that the plaintiffs in either case (the private individuals in one case or the states in the other case) have standing, but I am expecting that the Supreme Court will find that the private individuals lack standing but that the states do.  I am not sure which justice will have which case.

March was a problem month for projecting as it was the only month with more than nine opinions (meaning some justice would get two cases).  This week, we got two opinions from March by Justice Kavanaugh which resolved that issue.  We have one outstanding case involving the “extraterritorial” application of copyright law and one justice without an opinion — Justice Sotomayor.  As such, the expectation is that Justice Sotomayor will get that case.

In April, we are down to two cases and two justices.  The cases are the religious civil rights case involving the postal worker who objects to working on the sabbath and a Colorado case involving the intersection between stalking/harassment and the Free Speech Clause (the issue is the mental state which the government must prove to demonstrate that the defendant’s speech is a “true threat” which is not protected by the First Amendment).  The two justices with outstanding opinions are Justice Kagan and Justice Alito.  Given the weird issues in these two cases, I can see a weird split on these two cases (or both could be near unanimous).  Nothing about either case screams out which justice is likely to have which case.

We will likely have the final opinion by Thursday.  At which point, the justice will leave for whatever private resort conservative interest groups will provide free trips to for this year.