With one week down and three more to go, an updated look at where things stand. Last week’s post gave some of the basics about reading Supreme Court hints about who might have which opinion. The Supreme Court has added a second opinion day (Friday) for this upcoming week and the two weeks after that could include three days each with twenty-three cases left to go.
With the decision in the Alabama redistricting case, we now have all of the opinions from October. As Justice Thomas did not have an October opinion, he is almost certain to have one opinion from November. As noted last week, a big question mark for November is whether the two affirmative action cases will both produce a signed opinion. (Because Justice Jackson is recused in the Harvard case, it is less likely that it will be one opinion for the two cases, but the Harvard case might produce an unsigned opinion.) And depending upon what happens in the affirmative action cases and the student loan cases (which could also end up with only one signed opinion), that will determine whether any justices will have an “extra” opinion through February.
Assuming that we have five opinions coming from November, besides Justice Thomas, the other four justices who could have a November opinion are Chief Justice Roberts, Justice Alito, Justice Kavanaugh, and Justice Barrett. Based on that line-up, it would be a shock if the Supreme Court upholds affirmative action in college admissions. It is also an ominous sign for the Indian Child Welfare act case as that group is not known for its concern for Native American interests.
Moving to December, we have four cases. One of the four is the North Carolina redistricting case. Given the unusual decision by the North Carolina Supreme Court to reopen that case and switch its position, there probably will not be a signed opinion. But it would have initially been assigned to a justice and would “count” in terms of splitting up the December cases. (That justice might have gotten a “make up” opinion in March or April.) December also includes the Texas immigration case and the “free exercise” exemption for civil rights laws case. Again, the line-up is generally not good. The four justices available for the four remaining opinions are Chief Justice Roberts, Justice Kagan, Justice Gorsuch, and Justice Kavanaugh. Fortunately, the Texas immigration case would be a big stretch and there is a real chance that the Chief Justice and Justice Kavanaugh will support Immigrations and Customs Enforcement over Texas. Assuming that the Chief Justice had the North Carolina redistricting case, I could see either Justice Kavanaugh or Justice Kagan having the Texas immigration case. But I am expecting to see some type of religion-based exception to the laws protecting the LGBTQ community.
All of the January opinions have been issued, and we are down to to the two student loan forgiveness cases in February. Given the distribution of cases in the first four months of the term, it looks like there will be two opinions with the Chief Justice having one (probably the Eighth Circuit case which will address the merits) and Justice Alito has the other (which will be the other case in which the plaintiffs lack standing).
March is still unpredictable as some justice will pick up a second opinion in March. As three already have one opinion, we know that the remaining six will have at least one opinion. But who will get the second opinion is still up in the air. Additionally, until we know what is happening with the affirmative action cases, we do not know how many justices will have seven opinions this term. Based on the above projections, if there are separate opinions in the both of the affirmative action and student loan cases, two justices will have seven opinions. If each results in only one signed opinion, then each justice would have six opinions (counting the North Carolina case as if it were a signed opinion although it probably will not be.) If the affirmative action cases result in a single signed opinion, Justice Kavanaugh is probably not getting an opinion in November. If the student loan cases results in a single signed opinion, Justice Alito will probably have two opinions coming in March.
It is still to early to predict who will get which case from April, but the five remaining opinions should come from Justice Alito, Justice Sotomayor, Justice Kagan, Justice Kavanaugh, and Justice Jackson. The big case from April is the postal worker religious accommodation case (most likely to be Justice Alito or Justice Kavanaugh), but the normal splits may not apply to that case.
