On Thursday and Friday, the Supreme Court issued eight opinions in cases.  That leaves twelve cases still pending (including the two partisan gerrymander cases from March and the census case from April) heading into the last week.  Given that the Supreme Court has been issuing four opinions per day, it is likely that they will be adding two more opinion days to Monday’s opinion/order day.

The big story of this term continues to be that know precedent is safe from reconsideration by the “conservative” majority.  In four separate cases, there was a suggestion that the governing case be overruled or, at least, substantially modified. 

Gundy involved a provision of the Sex Offender Registration and Notification Act.  The provision occurs in the section governing when individuals subject to the Act need to register.  The other provisions in this section dictate when new offenders have to register.  The questioned provision leaves it up to the Attorney General to establish the rules for when prior offenders have to register.  For the first time in decades, the Supreme Court was considering whether such a delegation violated the non-delegation doctrine (barring giving legislative power to an executive official).  Prior to 1940, this doctrine was used to undermine the early regulatory agencies.  Currently, the rule is that — as long as the statute granting the power to adopt regulations contains some “intelligible principle” — the delegation is merely about how to implement the legislative scheme and is valid.  This case resulted in a 4-1-3 split (as it was argued in the first week of October before Justice Kavanaugh joined the Supreme Court).  The four in the majority found — given the rest of the act and the rest of the section — that the Act had the goal of eventually requiring all sex offenders to register and that the delegation to the Attorney General was merely to establish the timing of when prior offenders would have to register.  The three in the dissent declined to infer such a principle — broadly reaffirming the validity of the non-delegation doctrine and strictly reading the requirement for an “intelligible principle.”  The fifth vote in the majority came from Justice Alito who indicated that he wanted to reconsider the last eighty years of cases on the non-delegation doctrine and only voted in the majority because there are worse examples than the Act.  (Basically a dissenting opinion styled as concurring in the judgment because a 4-4 vote would have resulted in an order showing the lower court affirmed by an equally divided court without opinions setting the stage for a drastic revision of the non-delegation doctrine once Justice Kavanaugh is able to sit on one of these cases (which may take some time as many of the regulatory cases come from the D.C. Circuit).  Only time will tell what these revisions might mean for the Securities Exchange Commission, the Environmental Protection Agency, the Food and Drug Agency, and the Equal Employment Opportunity Commission.

In American Legion, the Supreme Court considered whether a World War I monument built in the shape of a Latin Cross violated the Establishment Clause.  This case was probably the one that most justified overruling a prior opinion.  Since the adoption of a three-part test for Establishment Clause violations in the early 1970s, the Supreme Court has been finding exceptions to that test or ignoring it to reach the “right” result for various types of religious displays, ceremonial prayers, or references to God in the pledge of allegiance and elsewhere.  By the traditional “rules” of when it is proper to overrule precedent, a good argument could be made for overruling this test (called the Lemon test after the case in which it was adopted).  Ultimately, the justices issues six opinions in American Legion, letting the monument stay by a vote of 7-2.  While some of the opinions in the majority would have expressly killed the Lemon test, the ultimate conclusion was that the Lemon test simply was not suited for this type of circumstance.  (Justice Thomas would have ruled that the Establishment Clause did not even apply to the states as its original purpose was to protect state establishments of religion from being replaced by a federal establishment of religion.)  In short, the Lemon test survives as one tool to be used in evaluating an Establishment Clause claim but not one that is always controlling.

In Knick, the conservatives did bite the bullet and overturn a prior decision.  There are two types of Takings Clause cases.  The first is eminent domain in which the local government affirmatively condemns/takes private property.   These cases traditionally proceed in state court.  The second are “inverse condemnation” cases in which the government action has the effect of infringing on somebody’s property (a new bridge causes land upstream to flood, a regulation effectively makes a land useless).  In your typical eminent domain case, the only issue is what qualifies as just compensation.  In your typical inverse condemnation case, the first issue is whether there is a taking.  Only if there is a taking does the question of just compensation arise.  In the 1980s, the Supreme Court ruled that plaintiffs alleging an inverse condemnation had to initially pursue the claim in state court.  While technically an “exhaustion” requirement, because other rules made the state court determinations binding on federal court, this holding had the effect of eliminating any civil rights claims based on a violation of the Takings Clause.  Conservatives were upset that Takings Clause claims were effectively being kept out of federal court while all other claims of a violation of a person’s constitutional rights could proceed in federal court.  This week, they finally got the opportunity, and the Supreme Court in a 5-4 decision ruled that plaintiffs alleging inverse condemnation could file their claims in federal court. 

Finally, while the rest of the Supreme Court applied its late 1980s Batson  decision (barring the use of race as a reason for striking potential jurors) to a rather infamous Mississippi case in Flowers, Justice Thomas again went out on a limb as a court of one, indicating that he would have simply overturned Batson. 

So with the steady drumbeat of a conservative majority looking to undermine 80 years of precedent and the regulatory state, what is left for this week’s climax.  As an initial point, the decision in Gundy has thrown things for a loop.  By the normal rules of opinion assignment, the prediction was that Justice Sotomayor had Gundy.  Instead, Justice Kagan had the plurality opinion in Gundy.  While the first suspicion would be that Justice Sotomayor had lost the majority in her “assigned” case, that would only work if Justice Sotomayor had been in the dissent in Justice Kagan’s other October case (otherwise, some other justice would have been the one with two October cases).  Potentially, Justice Sotomayor had Knick for the month between its initial argument and the decision to submit it for reargument (but that requires assuming that one of the conservative four was willing to punt the issue in Knick but then had a change of heart — a theory potentially suggested by the request for supplemental briefing when the Supreme Court decided to order reargument).  

With the caveat that the following is now more of a guess in light of the screwed-up opinion count, there are four cases left from March and four justices without a March opinion.  Considering that only Justice Kagan is left from the “liberal” justices and the four cases include the two partisan gerrymander cases and a third case challenging the traditional rule of deference to an administrative agency’s interpretation of its own rules, the tea leaves are not looking good.  At best, maybe Chief Justice Roberts will issue an opinion in the partisan gerrymandering cases that is another punt to avoid the implications that the Supreme Court is taking sides based on political preferences.

As far as the census question, there are still five cases left from April and four justices that have not written opinions.  If I had to bet, I would guess that Justice Sotomayor has the last case remaining from December, and Justice Ginsburg has the last remaining case from February and the extra case in April.  Most likely, Justices Thomas, Breyer, and Kavanaugh have issued all of their opinions for the year.  Three of the four justices due for an April opinion are conservative justices, so unless one decided to punt and send the census case back for further fact-finding, things are not looking good. 

The bottom line is that things are not looking good for the rest of this term and for the next several years.  For thirty years, the Federalist Society has been dedicating to grooming young and upcoming conservative attorneys to take their spot on the Supreme Court to return us to the dark days of the “Old Court.”  The problem with the “balls and strikes” view of the Supreme Court is that the Supreme Court is generally deciding what the law is — not whether a particular plaintiff or defendant has a valid claim under the law.  And the conservative movement wants to roll the law back to an earlier era.  For fifty years, progressives have placed insufficient emphasis on getting good judges on the bench to preserve the reforms of earlier eras, mistakenly assuming that once we had a favorable interpretation from the courts that the good rule was safe from judicial activism of the conservative type.   We are going to pay the price this next week for the fact that conservatives have understood the importance of controlling the courts for their political agenda.  Hopefully, in next year’s elections, we will remember that any Democrat in the White House or the Senate is better than the best Republican (and that means you Senator Collins).