We are now down to two weeks left before the effective end of this year’s Supreme Court term.  (Officially, the term ends at the start of October when the next term begins.  But the Supreme Court usually issues all of its opinions before the Fourth of July and only handles emergency matters in July, August, and September.)  As was noted in the post two weeks ago, there are some unwritten rules regarding how the workload is distributed among the justices which makes it possible (not easy but possible) to speculate about who might have which cases.

One complicating factor in this year’s term (as discussed two weeks ago and last week) is that we do not know how many written opinions we are getting this term.  There are three ways that we could end up with fewer opinions:  1) in related cases, the Supreme Court could “consolidate” the cases and issue one opinion covering both cases (this normally happens before argument, but can happen when opinions are assigned); 2) in related cases, the Supreme Court could decide to issue a signed opinion in one case and an unsigned opinion in the other case; and 3) the Supreme Court can dismiss a case after argument.  We have already seen all three possibilities occur this term.  We could have up to eighteen opinions still to come this term.  At the present time, we know that we will have two opinion days this upcoming week.  In last week’s two opinion days, we only get five opinions, but we got six opinions on one day back in May.  My hunch says that we are likely looking at two or three opinion days the week of June 26, but the Supreme Court tends to keep that information closely held and it tends to not announce the last opinion day until the next-to-last opinion day.

How many opinions we have left matters because the Supreme Court tends to try to keep the workload balanced.  If we have eighteen opinions left, there will be fifty-six total opinions for the term which would mean that every justice would have six opinions with two justices getting seven opinions.  But it is possible that some of the remaining cases could have no opinion.  While, due to Justice Jackson recusing in the Harvard case, it is unlikely that the two Affirmative Action cases will be consolidated, it is easy to see a signed opinion in the North Carolina case and an unsigned opinion in the Harvard case.  We could see a consolidated opinion in the student loan forgiveness cases.  And everyone is expecting a dismissal in the North Carolina redistricting case.

Now to the tea leaves.  The Supreme Court has issued opinions in all eight cases argued in October.  Every justice but Justice Thomas had an opinion which means that Justice Thomas is practically certain to have a November opinion.

At the present time, assuming two signed opinions in the two affirmative action cases, we are expecting nine opinions from November which would mean one opinion from each justice.  After this week’s opinion in the Indian Child Welfare Act cases by Justice Barrett, we have four cases left and four justices who have not written opinions yet.  The remaining justices are Chief Justice Roberts, Justice Thomas, Justice Alito, and Justice Kavanaugh.  There is a chance that the Chief Justice has one of the affirmative action opinions, but I believe that Justice Thomas will be writing the main opinion.  For his entire career, Justice Thomas has been the African-American face that white conservatives have used to support the fiction that African-Americans oppose affirmative action.  Given that Justice Thomas is a prime example of how affirmative action has helped minority individuals, the odds are that his fellow justices will again use Justice Thomas to provide cover for their own opposition to civil rights.  Assuming that the North Carolina opinion is the lead case addressing the equal protection clause, I can see any of the other three doing the Harvard opinion explaining how the civil rights laws related to education incorporate the equal protection clause.  But, if I had to guess, Justice Alito is getting the federal habeas case, the Chief Justice is writing the Harvard case, and Justice Kavanaugh is writing the opinion on when state courts have jurisdiction over cases involving corporations based in other states.

Moving to December, like November, we have a total of nine possible opinions of which six have already been issued.  That means that we are still waiting for three opinions with three justices who have not written opinions — the Chief Justice, Justice Gorsuch, and Justice Kavanaugh.  All three cases left are potentially significant — the North Carolina redistricting, the religious objection to civil rights laws regarding LGBTQ individuals, and the immigration case involving enforcement priorities — so any of the three could easily have gotten any of the cases.  My hunch is that the Chief Justice got the North Carolina redistricting case.  But it’s hard to tell.  The unusual action by the North Carolina Supreme Court in reopening the case came two weeks after the oral argument.  Given the holidays, I expect that the assignment of cases took place before that unusual move, but, if the assignments came after New Year’s, I can see the Chief assigning the North Carolina case to one of the other two justices.   (I also think that even if we never get a signed opinion in the North Carolina case, that case will count as an assigned opinion given that the case blew up completely well after oral argument.)   I don’t think any of the three are particularly good to have for the civil rights case, but the best of the three in past LGBTQ cases has been Justice Gorsuch.  And I think the Texas immigration cases borders on frivolous.  Whichever of the tree gets it is likely to write an opinion that lays the blame on Congress for not adequately funding the deportation process and questions the administration’s priorities while finding that an underfunded executive branch gets to choose which deportable immigrants should get the highest priority.

All of the January opinions have been written.  Given the prior decision to issue an unsigned opinion in one of the two internet “aiding terrorist” cases, there will be five opinions from February and three have already been issued.  That leaves the two student loan cases.  Given the total number of opinions from January and February, it seems unlikely that any justice would have no opinions from those two months.  And the total number of opinions through February implies that every justice should have at least four opinions through February.  Both factors tend to suggest that we will get two separate opinions — one finding that the private parties lack standing and one creatively finding that Missouri has standing (it doesn’t) which will then proceed to address the merits question.  The two likely authors (as neither currently has a January or February opinion) are Chief Justice Roberts and Justice Alito.

Assuming that all of the above is correct, every justice should get one opinion from March (out of ten total) and one opinion from April (out of nine total).  Justice Kavanaugh is due for one opinion from each month which (assuming that he will have a November and December opinion for the reasons noted above) would put him at seven for the term so he will not be getting a second March opinion.  But, again assuming that there will be fifty-six opinions from the term and giving every justice one March and one April opinion would put the remaining justices at six opinions each.  In other words, until we see a justice with a second opinion from March (or we learn what is happening with the affirmative action cases, the North Carolina redistricting case, and the student loan cases), we do not know which justice will get the second March opinion.  My hunch is that it will not be Justice Jackson.  We have seen all six opinions from her for the term and it would be unusual for a first term justice to get one of the “extra” opinions.

For what we do know about March and April.  We know that four justices have at least one opinion still to come in March — Justice Thomas, Justice Sotomayor, Justice Kavanaugh, and Justice Barrett.  None of the remaining cases screams out that a particular justice is likely to get them.  The cases let for March includess a Native American “water rights” case, a free speech case regarding the law against encouraging unauthorized immigration. a case on the use of a defendant’s statement in a joint trail with codefendants, a copyright case, and an arbitration case.  Given the numbers noted above, I do not think that Justice Kavanaugh will get two opinions from March, but the other three could.  Given the timing of arguments, I could easily see (assuming that the Chief Justice or Justice Gorsuch originally had the North Carolina redistricting case) whichever justice had the North Carolina redistricting case getting the extra opinion from March as a “make up” assignment.

And that leaves April with four opinions outstanding and four justices still due for an opinion — Justice Alito, Justice Sotomayor, Justice Kagan, and Justice Kavanaugh.  One of the four cases involves the protection of religion in the civil rights act and whether an employer (here the postal service) needs to accommodate religious limitations on when the employee is allowed to work.  The other three cases have criminal law related topics (one involving what is a “true threat” in harassment and stalking cases which is, therefore, not protected by the Free Speech Clause).  Again, I am not seeing anything that makes me think that one justice is obvious for any of the four cases as there are weird issues in these cases that could result in unusual votes by the justices.