In normal years, the Supreme Court would probably have wrapped up business for the term by now. It has been a long time since the last time that the Supreme Court was still issuing opinions in an argued case after June. There is still a chance that the Supreme Court might finish this term by June 30, but we are getting mixed messages from the court. (I do expect to see opinions in all of the cases before the Supreme Court recesses, but there is a chance that some cases could be set for reargument in the fall.)
On the one hand, we have yet to get any opinions from the May arguments. While the May arguments were two weeks later than the usual time for the April arguments, it is usual to have some of the April opinions by the early part of June. We also have not seen the pace of opinions pick up. In the last weeks of the term, it is not unusual to see three or more opinion days per week, and multiple opinions on each opinion day. At the present time, while we have had second opinion days for the last two weeks, we have only gotten a total of five opinions over the last two weeks (as opposed to the more usual eight to ten opinions per week). And the Supreme Court has only announced two opinion days for this upcoming week.
On the other hand, the Supreme Court has announced that they will have a conference on Wednesday and release orders on Thursday (rather than the normal Monday order day). That sounds like Wednesday could be the “wrap-up” conference.
If we are about to get all of the opinions, Monday and Tuesday are going to be very busy. Unless some cases are being scheduled for reargument in the fall, we still have 11-13 opinions still pending. (The lower number assumes one opinion for the two faithless elector cases and one opinion covering both the grand jury and the congressional subpoenas for Trump financial records. There is a decent chance that the opinion in the Washington faithless elector case will be the only real opinion, and the Colorado case — in which Justice Sotomayor is recused — will merely vacate and remand in light of the Colorado opinion. But it seems like the Congressional subpoena cases and the state grand jury subpoena case involve a different balancing of interests that should require two opinions — if only to explain why the tests for the two are the same.)
Furthermore, all of the normal “hints” that people use to predict results in cases are out the window for the May arguments. We have a good idea of who might have the three opinions that are still outstanding from January and February (see below). But with no opinions issued yet for May, any justice could have any case.
Another method that is usually used to predict which way justices are leaning is to look at the questions during oral argument. While not 100% accurate as a predictor, justices tend to ask more and tougher questions of the side that they are unlikely to support. And, when they do ask questions of the side that they favor, they tend to be more of a lifeline tossed out when the other justices are piling on with tough questions. The unusual, every justice takes a turn, approach to the May teleconference arguments tended to mean that all justices asked both sides a similar number of questions. So we can try to guess at some cases based on the usual tendency of the justices in those types of case, but as, some of this terms opinions like the Title VII cases show, justices — especially the newer justices — occasionally surprise people.
Now for the remaining January and February opinions, we have three major cases left. From January, we have the Montana case on their state establishment clause. Like several other states (some of which have provisions dating from the post-Civil War era of the “Baby Blaine Amendments), Montana has a very strict state establishment clause barring the use of any state funds to aid any religious institution. Several years ago, the Supreme Court — based on the Free Exercise Clause — took a nibble out of Missouri’s clause. That is not a good sign for Montana, but it also seems — particular in light of the vague line drawn by the federal establishment clause — that states can’t opt for a clearer rule.
From February, we have two big cases. The first involves the constitutionality of the structure of the Consumer Finance Protection Bureau — namely that it has one person in charge who has a term and can only be discharged for cause. Almost a century ago, the Supreme Court struggled with the concept of “independent agencies” (like the Securities and Exchange Commission or the Federal Election Commission), but ultimately to terms with the idea. Of course, today’s so-called conservative legal community would like to revisit the Supreme Court’s New Deal era jurisprudence. The other opinion from February involves Lousiana’s attempt to effectively ban abortion in that state.
For both months, we are down to two justices who have yet to write opinions. In fact, for both months, they are the same two justices — Chief Justice Roberts and Justice Breyer. While the practice of keeping opinion assignments balanced is not an absolute rule as we have already seen, it is a practice. However, for the overall term, Chief Justice Roberts appears to be two short through February, and Justices Breyer, Thomas, and Kavanaugh are one short with Justice Gorsuch being one over. (While I am not sure why Justice Thomas was one short in December, the numbers for Chief Justice Roberts, Justice Kavanaugh, and Justice Gorsuch strongly suggests that the Title VII cases originally went to Chief Justice Roberts and Justice Kavanaugh and that Justice Gorsuch flipped his vote at a later date. We will probably not know the truth until we see the justice’s papers after they retire.) Obviously, the mix of justices who could have these cases is a reason for concern about what may happen in them. The only good sign on June Medical is that the Chief Justice joined in the decision to grant the stay of the decision by the Fifth Circuit upholding the laws and that the Louisiana law is close enough to the Texas law struck down a couple of years ago that the Chief Justice might decide that it would be too damaging to the reputation of the Supreme Court to uphold the Louisiana law.
While we are clueless on who will have which opinion from May, those opinions will be very significant. Of the ten possible opinions, beside the four discussed above, several will be significant. We have a case on the ministerial exception to Title VII involving school teachers (essentially whether all teachers at parochial schools qualify as ministers for the purpose of Title VII), the continued struggle over the scope of a religious exemption under the Religious Freedom Restoration Act to the mandates of the Affordable Care Act, whether the U.S. can condition aid to foreign affiliates of U.S. charities on their taking certain positions (prior cases bar such restrictions on grants directly to the U.S. charities), the constitutionality of the federal robocall statute, and the continued struggle to reconcile the criminal justice system with the oft-broken treaties that were made in the nineteenth century with Native Americans (which could substantially disrupt half of the state of Oklahoma).
If we really are getting all of the opinions on Monday and Tuesday, the Supreme Court might just displace the Orange Menace and his ineptitude on COVID-19 from the headlines for a day or two. Of course, the fact that we are even having to worry about this batch of cases is a reminder of how important the occupant of the White House and control of the Senate is.
UPDATE: From Monday and Tuesday, we had a total of five opinions. As of Tuesday evening, the Supreme Court has not announced any further opinion days for the week; so it is more likely than not that the next opinion day will be sometime during the week of July 6. There are between six and eight likely opinions (depending on if the Trump financial record cases are one or two opinion and whether there is one or two opinions in the faithless elector cases). Thus, it is 50-50 on whether we will be done next week or in mid-July. We are done with everything but May. I will be trying to get something on this week’s bombshells (even the good results may be bad news going forward as we merely dodged immediately fatal wounds while sustaining incredible damage to progressive principles).
