We are down to the last two (probably) opinion days of the term.  We know that the Supreme Court will be issuing opinions tomorrow (Wednesday).  More likely than not, the last opinion day will be Thursday, but there is still a possibility that it might be on Friday or there could be opinion days on both Thursday and Friday.  For the past several opinion days, there have been four opinions per day which would imply only two opinion days but things could change.

Besides continuing the pace of four opinions per day, Monday was a day of follow-up cases with the two biggest opinions being Brunetti and Davis.  Brunetti involved the law on registering trademarks, in particular a provision barring the registration of immoral or scandalous trademarks.  Following up on Tam which had struck down a provision barring the registration of disparaging trademarks, the Supreme Court unanimously struck down the bar on immoral trademarks and by a 6-3 vote struck down the bar on scandalous trademarks (although some justices suggested Congress might be able to adopt a narrower bar on profane trademarks that might survive review).  Davis involved the “residual clause” — a clause placed in several criminal and immigration laws as a catch-all to the definition of violent crimes which includes crimes that by their nature involve a substantial risk of the use of physical force.  In several previous cases, the Supreme Court has found that particular versions of this clause were “void for vagueness.”  In Davis, the Supreme Court struck down the residual clause in the statute barring the use of firearms in a violent crime.

With eight cases left, the tea leaves are becoming clearer.  And that is generally not good news.  We have one case left from each of the December, January, and February argument sessions.  There are three cases left from March (although it is possible that the two partisan gerrymandering cases will be consolidated).  Finally, there are two cases left from April. 

At this point, there are two big tea leaves.  First, it is unlikely that any Justice has more than eight opinions total for the year.  Second, in most months (except for February which only had six cases), justices should have at least one case per month.  It is also more likely than not, given the total number of cases, every justice should have at least five opinions and no more than six through February. 

Based on the above, January and April are the easiest months to project.  There is one case left from January (involving out-of-state owners of liquor stores) and Justice Alito is still due an opinion.  This case is one of those that does not fit into clearly liberal-conservative lines; so the ruling could go either way.  In April, there are two cases left and Chief Justice Roberts and Justice Alito are still due an opinion.  My bet is that Justice Alito gets the implied consent case from Wisconsin (whether implied consent laws allow a warrantless blood draw from an unconscious driver).  That leaves Chief Justice Roberts with the census question case.  Probably not a good sign.

In March, there are three cases and three judges who are due an opinion.  One of the three cases is a major administrative law case in which conservatives have been pushing to overrule long-standing precedents and the other two are the partisan gerrymander cases.  The three justices that are still due an opinion are Chief Justice Roberts, Justice Kagan, and Justice Gorsuch.  If the two gerrymandering cases are consolidated, then Justice Kagan already has seven cases for the term and it would be likely that Chief Justice Roberts has the partisan gerrymander cases and Justice Gorsuch the administrative law case.  Again, the omens are not good for those who oppose partisan gerrymandering.  

For the remaining two cases — both criminal law issues — Justice Ginsburg is due at least one more opinion.  It also seems like Justice Sotomayor is due one more opinion from the first part of the year.  Additionally, both Justice Ginsburg and Chief Justice Roberts appear to be potential candidates for the one February opinion.  If Justice Ginsburg has the February case, the field is mostly wide open for the December opinion.  If both Justice Gorsuch and Justice Kagan get a March opinion, that would put both of them at eight opinions along.  Both Justice Thomas and Justice Breyer already have eight opinions; so that leaves any of the five remaining justices for the December case.

While this is the last week of opinions, this week also added to the interest in the fall term.  The Supreme Court took three cases involving the Congressional refusal to pay insurance companies amounts required to cover their losses on certain policies under the Affordable Care Act.  On the one hand, the far right would love to undermine the Affordable Care Act, but the business wing of the Republican Party would rather not leave insurance companies holding the bag. 

That split represents a developing theme of the Roberts Court.  The Supreme Court is not a set of neutral umpires calling ball and strikes.  They are more like the rules committee with substantial discretion to alter the rules as they see fit.  But both the Democratic Party and Republican Party are broad coalitions unifying several different political/legal philosophies.  As such, there are some cases that cut across party lines resulting in what, at first glance, are unusual voting alignments.  But if you look at the result of cases over time, you see a voting pattern among the justices with certain justices “crossing the aisle” on particular issues.  But when a case involves a purely political issue in which the two parties are internally unified, you tend to get a 5-4 win for conservatives to preserve the power of the Republican Party.  Over the next two days, we will see what this means for fairness in the 2021 redistricting process — both with regards to partisan gerrymandering and with regards to the census itself. 

UPDATE:  With today’s three opinions, the chances of a decent decision of partisan gerrymandering and the census got worse.  Justice Alito had the remaining January decision; Justice Gorsuch got the February opinion; and Justice Kagan got the non-gerrymandering case from March.  That seems to hint that Justice Ginsburg has (had if it is a 4-4 split) the December case leaving Chief Justice Roberts with both partisan gerrymandering cases and probably the census case (leaving Justice Alito with the DWI case).