We are at that point of the Supreme Court terms when we are waiting for the other shoe to drop. All the arguments and briefing for the term is done, and what is left is for the opinions to slowly drip out. For now, the Supreme Court is only holding one opinion day per week. That will be changing soon.
In May, we tend to get the older cases (October, November, and December) that have multiple opinions and newer cases (March and April) that were “easy” unanimous decisions. As we get later into June, we will get the 5-4 decisions from February, March, and April, and the number of cases will pick up.
So far, in May, there have been three opinion days (with one more set for this Thursday). On those opinion days, we have gotten, two, three, and three opinions. With eight opinions down, we still have approximately thirty-five opinions (approximately because there are a few cases that could be consolidated) left to come over the next five weeks. That number is why we are likely to get multiple opinion days per week in the latter part of June as we need nine to twelve opinion days.
The two big opinions of May (so far) are Community Financial Protection Bureau vs. Community Financial Services of America and Alexander v. South Carolina State Conference of the NAACP. These two cases got to the Supreme Court by different means. The case involving the CFPB came via a writ of certiorari from the Fifth Circuit which is getting an even bigger reputation than it has always had for being the home of wacky conservative judges. The South Carolina case is an appeal of right from a three-judge panel. However, while the Supreme Court has to “hear” appeals of right, the Supreme Court can summarily affirm or reverse without full briefing and argument. As such, the decision to set such a case for argument is telling.
The CFPB case was one of the cases that give court observers nightmares. The lower courts had held that, because the CFPB is funded by a statutory mechanism which does not require annual appropriates, the funding for the CFPB violates the Constitution. But a significant number of programs — including Social Security — are funded by statutory mechanisms which do not require annual appropriations. There are two clauses related to appropriations in Article I of the Constitution. Clause 7 (the Appropriations Clause) of Section 9 dictates that no money can be drawn from the Treasury unless that money is appropriated by Congress. But Clause 12 of Section 8 (covering defense spending) establishes that appropriations for defense spending can cover no more than two years. Even without anything else, the text of the Constitution recognizes that appropriations can cover more than one year and that the only restriction on multi-year appropriations are for defense spending. Thus, while, for discretionary spending, the current practice is annual appropriations that is not mandated by the Constitution.
More importantly, as recognized in the majority opinion (and concurring opinions), the historical practice has been to appropriate money in different ways. While there is now a tendency to split “authorization” bills creating a long-term program from “appropriations” bills actually giving those programs money, that is not constitutionally required. Ultimately, an “appropriation” is an “authorization” to spend money. As such, the Constitution allows Congress when setting up a program to authorize that program to draw on a certain source of revenue and spend that money under certain conditions (including authorizing the officials in charge of that program to spend that revenue as they see fit). Now, there are policy reasons why annual appropriations are a good idea (more Congressional control over a program and the spending on that program). And there are policy reasons why a longer term of appropriation is a good idea (an expectation that it will take several years to get results from a program and wanting to give it time to get results). But these are policy reasons which means that Congress gets to choose, not the courts. And a future Congress can change how funding for a program is appropriated. While, today, that might be difficult, it is not impossible. The plain text of the Constitution and common sense resulted in a 7-2 majority upholding the funding for the CFPB. Of course, showing how originalism and textualism are fig leaves for judges and justices doing whatever they want, Justice Gorsuch and Justice Alito dissented.
The other case is the latest in the Supreme Court’s tortured approach to redistricting. Under the Voting Rights Act, a state legislature (or other redistricting authority) may not dilute the votes of minority voters. Under the Equal Protection Clause, however, states may not draw lines based solely on race. But the Supreme Court has said that other factors (including partisan gerrymanders) are not subject to judicial review. But there is a correlation between race and partisanship. In South Carolina, the legislature needed to move voters into District 6 (represented by Democrat James Clyburn) and out of District 1 (represented by Trumper Nancy Mace). In doing so, to assure that District 1 became a safer Trump District, the legislature aimed to keep the Black Voting Age Population (BVAO)below 17% of the total Voting Age Population in District 1 (because a higher number of African-American voters would have made the district a toss-up district. The three-judge panel found that such an act was an act based on race, and the dissenters (Justices Jackson, Kagan, and Sotomayor) deferred to that factual finding. The majority (with the opinion written by Justice Alito) set aside that factual finding by asserting that the panel did not give enough weight to the presumption that the lines drawn by the legislature are constitutional. The effect of this case (by presuming that partisanship rather than race was the reason for discriminating against African-American Democrats) will make it very hard to raise an equal protection challenge in the future if the majority of justices support the party that drew the lines.
Besides this split between the majority and the dissent over whether a hard cap on the BVAP was sufficient proof of racial discrimination, there was a concurring opinion from Justice Thomas that — notwithstanding the Voting Rights Act and the Equal Protection Clause, courts should not be involved in in the redistricting process and that the delegation of that power to the state legislatures (either under Article I or the Tenth Amendment) trumps the later enacted provisions of the Fourteenth and Fifteenth Amendment notwithstanding the traditional rule that the later amendments can alter the original text or earlier amendments.
Ultimately, these cases are one good result for those who want a functioning government and want to preserve entitlements, and one bad result for those who want fair elections.
For what is left, it is still too early to project much for the remainder of the term. As noted in past years, there is an unwritten rule that, in assigning cases, the Supreme Court tries to distribute the work load evenly — both within each of the seven argument sessions and across the entire term. For the entire term, there are sixty-one cases which means that each of the justices should get six or seven opinions. With two per curiam (i.e. unsigned opinions) so far, we are looking at about half of the justices having seven opinions and the other half having six opinions. And, we really do not have many opinions after December. Of the twenty-six opinions so far, fifteen are from the first three sessions (out of twenty argued cases), and eleven are from the last four sessions. As such, we have some idea of the remaining cases from October through December and less of an idea for cases argued this year.
With the opinion in Alexander, the October argument session is done. With a total of twenty cases from the first three arguments, that works out to about two opinions per justice. Of the fifteen decided opinions, we have one per curiam opinion which means that one justice will have three opinions.. Given that there were thirteen cases (including the one per curiam opinion from October and November, every justice should have at least one opinion from the first two months. So far, we have one justice with no opinions from the first three months — Chief Justice Roberts. That means that he is almost certain to have both a November and a December opinion. The two cases from November are Rahimi (the Second Amendment case involving the federal offense banning the possession of firearms by those who are subject to an order of protection) and Vidal (a First Amendment case involving the ability to deny trademarks to products disparaging of an individual). I could see Justice Roberts writing either opinion given the significance of Rahimi and the focus of the Roberts Court on the First Amendment. The other opinion will come from Justice Thomas, Justice Alito, Justice Sotomayor, and Justice Kagan. If Rahimi sides with the defendant, the opinion will probably come from Justice Thomas. Otherwise, any of the other three could write either opinion. However, other than Thomas, the other three already have October and December opinions so if one of those three get the November opinion, that would indicate who will get the December opinions.
For the December cases, Roberts is likely to get one of the three. One of the other two opinions will go to Justice Gorsuch. The last opinion will depend on who gets the second November opinion. If Alito, Sotomayor, or Kagan get the second opinion, the third December opinion will go to Justice Thomas. If Justice Thomas gets the second November opinion, the third opinion will go to Thomas, Kavanaugh, or Barrett. The three cases for December are Purdue Pharma (involving the ability of the Bankruptcy Court to protect the owners of Purdue Pharma from individual liability for their conduct in the opioid epidemic), Jarkesy (involving the validity of the administrative penalties imposed by the Securities and Exchange Commision), and Moore (whether a tax on unrealized capital gains is an income tax authorized by the Sixteenth Amendment). All of these are big issues (some bigger than others). In short, there is not one in the group that says an easy case to go to a more junior justice or one that is guaranteed that the Chief will want for himself.
After that, things get harder. There are four cases still outstanding from January, but we could get a consolidated opinion in the two cases seeking to overrule Chevron (the case establishing that courts should defer to administrative agencies on close questions of statutory interpretation). If those two cases are consolidated,, then probably Alito, Kagan, or Kavanaugh picked up a November or December opinion with the other two getting a January opinion. In addition, Chief Justice Roberts and Justice Jackson should get a January opinion. Besides the two Chevron cases, there is a case on the notice requirements in immigration cases, a Confrontation Clause case involving experts testifying about their review of lab testing (when the original analyst does not testify), and a bankruptcy case involving a dispute about the meaning of an earlier decision. Half of the justices still do not have an opinion from February (where we have another per curiam opinion and the possibility of a consolidated opinion which might mean only one opinion from justices) and there are only two opinions so far from March and April (one each) meaning that it is still wide open for the remaining cases. Of particular note, Justice Sotomayor already has released five opinions. As she is still due for one from March, she probably does not have the November opinion as, given the current split in the court, she is more likely to end up with six opinions than seven — especially if we end up with only three justices getting a seventh opinion.
With twenty-two of the remaining cases having some political significance, the pace is definitely about to pick up. We will try to get to these decisions and what they mean for the elections as soon as possible after they are issued.
