It’s the first full week of June.  And that means that the clock is rapidly ticking to the end of this year’s Supreme Court term.  By custom, the Supreme Court tries to issue all of the opinions from the term before the Fourth of July holiday.  (It then spends the last three months of the term handling emergency motions and preparing for the next term.)

As we look ahead, some basics about how the Supreme Court operates.  During the argument portion of the term, the Supreme Court holds seven “monthly” — October through April — argument sessions (not quite as sessions often occur partly in two months but that is the convention used to describe the sessions).  In each session, the court hears arguments on Monday, Tuesday, and Wednesday (with some days skipped for federal and religious holidays).  Then on Friday, they discuss that week’s cases (along with applications for review) and take a tentative vote on each case.  After the vote, the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice in the majority if the Chief Justice is the minority) chooses which justice gets to write the first draft of the opinion.  Typically, the justices assigning the opinions try to assure a balanced assignment of cases within the session (i.e., if there were nine cases, each justice would get one opinion to write) and across the term as a whole.   When we reach this point of the term, we have enough opinions from individual argument sessions to try to guess who will have the opinion.

Starting with October, we are down to one outstanding case — the Alabama voting rights case.    The bad news is that there are only two justices without an opinion from October — the Chief Justice and Justice Thomas.  It is slightly more likely that the Chief Justice has the case   He tends to like writing election cases.  While both are very likely to write an opinion that would undermine the Voting Rights Act, Justice Thomas is more likely to want to write an opinion that reverses the decision entirely (with no further proceedings) and the Chief Justice is more likely to send it back to the trial court for further consideration (in light of a standard which allows Alabama to dilute minority votes) so there is a slim chance that the Chief Justice ended up on the wrong side of a 5-4 split.  But my hunch is a 6-3 opinion that ignores the plain language of the Voting Rights Act.

November is harder to guess at for several reasons.  First, there is the issue of who does not have an opinion from October as they will certainly have an opinion from November.  Second, while there were ten cases argued, there were two sets of two related cases.  One of those pairs has already been decided  with a single opinion (reducing the number of potential opinions to nine for November).  But in the second pair, the affirmative action cases, we might still get two opinions for two reasons:  1) Justice Jackson recused in the Harvard case but not the North Carolina case; and 2) the Harvard case (as Harvard is a private university) is based on civil rights law rather than the equal protection clause.  But I could see one justice getting both opinions as the ruling in the Harvard case will probably incorporate the equal protection analysis from the North Carolina case.  My hunch says that Justice Thomas gets the affirmative action cases.   Besides the affirmative action cases, there is a case on habeas corpus (a somewhat technical issue that would give federal inmates and maybe state inmates an alternative rout to raise claims) which, given this Court’s past history, I suspect will result in an opinion that declines to expand habeas and might be coming from Justice Alito.  Justice Jackson is the only “liberal” justice that does not yet have a November opinion, but it will likely be in one of the two minor cases.  The other big case of the term involves the constitutionality of Indian Child Welfare Act (which imposes certain requirements on state courts when the child up for potential adoption is Native American).  The bad news for Native Americans and tribal sovereignty is that Justice Gorsuch (the conservative justice most likely to write a favorable decision) already has an opinion from November.  I could see the Chief Justice writing this opinion.  Otherwise, it is likely to be written by Justice Barrett (for reasons discussed below, I do not think Justice Kavanaugh will have the opinion).

Depending on how the two affirmative action cases are handled, there will either be 16 or 17 total opinions from the first two argument sessions (meaning one or two justices will only have one opinion from the first two months of the term).  And December offers one more wrinkle into this term — the North Carolina redistricting case (Moore).  After the Supreme Court heard arguments, the new majority on the North Carolina Supreme Court took the unprecedented step of ordering rehearing and, on rehearing, found that the redistricting plans were not invalid.  As such, there is a good chance that the Supreme Court will find that it no longer is appropriate to decide (as the state courts are no longer relying on the state constitution to invalidate North Carolina’s congressional maps) whether state legislators are free to ignore state constitutions when passing laws related to federal elections.  As such, even though one justice would have been assigned Moore in December (and that would count in terms of case allocation), we might get an unsigned opinion dismissing Moore and only be able to guess in hindsight who originally had the case (as a hint of which way the Supreme Court was leaning for the next case presenting this theory).  Of the three other pending cases from December, two are relatively big — the “free exercise” case asserting that religious beliefs allow people to claim exemptions from civil rights laws to deny wedding-related services to same-sex couple (303 creative) and the efforts of Texas to claim that states can sue to force the federal government to stringently enforce immigration laws (despite the lack of appropriations to do so).  Assuming that the Chief Justice took Moore, my fear is that Justice Kavanaugh has 303 Creative and will find a way to say that discrimination against gays and lesbians is different from other forms of discrimination and we will let people assert religious reasons to discriminate (although we routinely rejected those arguments when the discrimination was racial discrimination in the 1960s).   I can see Justice Kagan getting the Texas case to write a rather mild decision finding that the relevant statutes have to be interpreted as giving the executive branch its typical discretionary authority over the exercise of its powers (here choosing which categories of eligible deportees should get the highest priority) especially as Congress has not fully funded enforcement of immigration laws.  That leaves a rather technical case on qui tam (a procedure in which private individuals bring civil fraud claims on behalf of the government) for Justice Gorsuch.  But, other than doubting that Justice Kagan has 303 Creative, I can see any of the four justices having any of the four cases,

All of the cases from January are decided.  Moving into February, here is where the treatment of the affirmative action cases really matters.   Through February, most of the justices will have four opinions but it is unclear the total number of opinions to be issued through February.   At this point, through February, most of the justices have three opinions issued so far.   The two exceptions are Justice Alito with two issued and Chief Justice Roberts who has no opinions from the first five argument sessions (strongly implying that he has one each from October, November, December, and February).   The January-February situation also gives some hint about October-December.  There will be ten or eleven opinions from January and February (depending on whether the two student loan debt cases result in one or two opinions), so every justice should have at least one opinion from those two months with no more than two having two opinions.  At the present time, Justice Kavanaugh and Justice Thomas have two opinions from January and February (implying that Justice Thomas only has one or two opinions from October and November) and that Justice Kavanaugh only has a December opinion outstanding (meaning that he is not writing a November opinion).    Chief Justice Roberts, Justice Alito, and Justice Sotomayor have no opinions from January.  That implies that each of the tree have one opinion in February.  It also implies that Justice Alito has an opinion from November and that the Chief Justice has one opinion each month from October, November, and December.    The three outstanding cases are two student loan forgiveness cases and one about the meaning of the federal identity theft statute.  My current guess is that the two student loan forgiveness cases will not be consolidated.  One opinion will find that people who did not have their loan forgiven do not have standing to challenge the grant of forgiveness to others.  The other will likely find that Missouri has standing (it really does not) and address the merits with Justice Alito playing the Grinch.

It is still too earlier to guess about March.  At this point, Chief Justice and Justice Gorsuch already has one case each from March (and both also have cases from April).  Given that there are ten March cases, one of them may have an extra case from March.  It also looks like two justices will have seven cases total for the term and that the rest will have six cases (but one might end up with five if they had Moore and it becomes an unsigned opinion).  My hunch is that Gorsuch just has a December opinion outstanding, but that the Chief Justice might have a March opinion left, but it is possible that one of the seven who have not yet written for March might have two opinions.   Of the March opinions, there are two potentially significant cases — one involving Native American rights to water from the Colorado River and the other involving the First Amendment and the law forbidding encouraging illegal immigration.

Besides the Chief Justice and Justice Gorsuch, Justice Thomas and Justice Barrett have already written an April opinion leaving Justices Alito, Sotomayor, Kagan, Kavanaugh, and Jackson to write in April.  The two big cases involve a civil rights (religious accommodation) employment discrimination case against the postal service and the other involves the First Amendment and harassment/stalking.

Recently, the U.S. Supreme Court has been issuing opinions on Thursday.  With four weeks left and twenty-eight cases to be decided, it is likely that an additional day or days will be added soon but probably not this week.