Normally, by this time of the year, the Supreme Court term is coming into focus. With three weeks to go, typically, there is one or two cases left from the Fall. While there are always question marks, it is possible to try to figure out results in the key case by who is in the running for getting the remaining opinions from a month.
This year is different. There are still 29 opinions outstanding out of 62 cases. While there have been years with more opinions outstanding heading into the last three weeks, those years were back when the Supreme Court was hearing a lot more cases per year.
To date, almost all of the opinions have been in cases that (other than the parties) mostly interested those practicing in that field. The biggest attention getting case was the decision reinstating (at least for now) the death penalty against the surviving Boston Marathon bomber. The legally biggest case of the year so far also came from Boston in a Free Exercise/Free Speech case involving Boston’s refusal to let a Christian group use one of the city’s flagpoles in connection with an event even though it routinely gave such permission to nonreligious groups. That decision may be an indicator of the likely result in some of the remaining cases, but it was merely a continuation of the recent trend in Free Exercise cases.
At this point, the Supreme Court has finished work on its October arguments (wrapped up in April) and has one case left from November. That one case is a big one involving the Second Amendment and New York gun laws. It’s pretty clear that the majority intends to find that New York City’s gun regulation (requiring permits for concealed carry but with vague standards for who gets them) is invalid. The bigger question is whether there will be a consensus for the legal test to be applied in Second Amendment cases. Given the Supreme Court’s practice of spreading cases around, the two justices who might have this opinion are Justice Thomas and Justice Barrett. It is pretty clear from past opinions that Justice Thomas would want to write a broad opinion with a very pro-gun rule for Second Amendment cases. But it’s not clear that such an approach could get five votes. I am not sure which of the two would have gotten the original assignment, but I would not be shocked if this case ends up being one of those that ultimately does not have a majority opinion. The majority will decide that this ordinance is invalid, but there will be no consensus for the rule that applies going forward. If there is a majority opinion, it is more likely to come from Justice Barrett. There is also a chance that we could have a surprise author with Justice Thomas having initially gotten the assignment but a different justice managing to get five votes for a different test than Justice Thomas proposed.
December is where the chaos begins. We know that Justice Alito got the initial decision in Dobbs (the abortion case). But there is another Free Exercise case involving Maine’s school voucher program., and a health care case involving Chevron deference. Ultimately, there are five cases still outstanding. Aside from Justice Alito having Dobbs, the justices in contention for the other four cases are Justices Breyer, Kagan, Gorsuch, and Kavanaugh.
The Supreme Court has actually issued more opinions for January than for December, and the remaining cases are immigration and criminal law cases that will have little impact outside of those fields. Who gets the remaining opinions (two of which will likely be consolidated) may impact who is getting the cases later in the term.
As is typical for this time of the year, the last three months of the term is really an open question. And, as noted above, we may have even fewer tea leaves than in the past with twenty pending opinions out of twenty-five cases. Among the outstanding cases are a challenge to the authority of the EPA, a case involving the ability of other state officials to intervene in a Voting Rights Case when the primary officials decide against appealing, the “Return to Mexico” policy, a case involving a coach praying on the field immediately after a football game that implicates the Establishment Clause, Free Speech, and Free Exercise, and finally a case from Oklahoma involving whether the state or tribal governments have jurisdiction over certain criminal cases (a follow-up from a prior case that found that tribal governments have jurisdiction over some cases). So ten of the remaining cases are very big.
The Supreme Court tends to release up to 5 opinions on the days that they release opinions, but four is a somewhat high day. At this time of year, a one opinion day is somewhat rare but two or three opinions are not that uncommon. The Supreme Court has already announced opinion days for Monday and Wednesday. If there are no more opinion days this week, there will need to be five or six opinion days for the last two weeks in June. With a holiday falling on June 20, the Supreme Court will have to release opinions almost every day to get things done by June 30.
Given the sheer number of decisions, it’s going to be hard to deal with each case as it comes down. So look for a post-July 4 wrap up (or several) dealing with the chaos that this Court is likely to create.
