This past week, the U.S. Supreme Court went from one opinion day (Thursday) per week to two opinion days (Thursday and Friday).  But the Supreme Court only issued three opinions on each day — four of the six have some political significance and so there will be posts on them later.  There are still 23 cases left to be decided (with 21-23 opinions) between them.  Thus unless, the pace of opinions picks up (and maybe 4 per day is likely), the Supreme Court needs at least seven opinion days between now and June 28.  The next opinion day is this Thursday.  While it is more likely than not that opinions will also be released on Friday, that would still leave four or five opinion days for the last week in June.  Maybe the last opinion day will be July 1 or July 2, but the Supreme Court tries really hard to leave town before July 4.

With this week’s opinion release, the dust has started to settle on who likely has what opinion.  Until opinions are released, such guesses are who likely initially got the opinion.  While not common, splits in how to decide a case and justices changing their minds as they dig further into writing an opinion can result in opinions being reassigned.  These predictions are based on the Supreme Court’s practice of trying to maintain a balanced workload — both within each month’s argument session and across the term as a whole.

At this point, enough opinions have been released to identify who still has opinions left to write from the first five months of arguments with two question marks.  The two question marks are two sets of companion cases — one from January in which two cases seek to overturn Chevron deference (a doctrine created by Justice Scalia that has courts deferring to administrative agencies over the proper interpretation of ambiguous regulatory statutes) and the other from February in which two cases involve state attempts to regulate interstate social media websites.  For both sets, it is possible that the Supreme Court will issue separate “authored” (i.e. the justice writing is identified) or that the Supreme Court will issue one “authored” opinion in one case with a brief per curiam (i.e. the justice writing is not identified) in the second case or that the Supreme Court will issue one opinion covering both cases.  If only one authoried opinion is released in both sets of cases, then things fall more smoothly in terms of the number of opinions per justice through February.  If either set has a second authored opinion, that adds an additional opinion for some justice making things more uncertain.

At this point, the justices are done for the October argument session.  There were six cases which meant that three justices had no opinions through October.

November had seven cases, but one case resulted in a per curiam opinion.  That left six opinions.  Based on the desire to maintain balance across the term as a whole, we would expect the three justices who did not have an opinion in October to have a November opinion and three justices to pick up their second opinion.  So far, that has proven true.  Two of the justices without an October opinion have authored November opinions, and three of the justices with an October opinion authored an opinion in November.  With one case still left to be decided — Rahimi on whether the Second Amendment bar a federal law prohibiting people restrained by an order of protection from owning firearms — the one justice without an opinion from October or November is Chief Justice Roberts.  The last Second Amendment opinion, written by Justice Thomas, took a pseudo-historical approach which requires courts to look for comparable regulations around the time of the adoption of the Second Amendment to see if the current regulation is the type of regulation permitted by the Second Amendment.  The expectation is that the Chief Justice’s opinion will clarify that this pseudo-history is only looking for loose similarities.

In December, there were seven argued cases.  Adding those to the list of cases from October and November brings the total of expected opinions to nineteen.  Thus, the expectation is that eight of the justices will have two opinions from the “Fall” arguments with one justice picking up a third opinion.  Thus the six justices who only had one opinion through November would each be expected to pick up a second opinion.  So far, in the four cases issued, this expectation has proven true.  The two justices without a second Fall opinion so far are Chief Justice Roberts and Justice Gorsuch.   While we know these two justices are likely to have an opinion in the three remaining cases there is no clear author for a specific case.  The most significant of the three cases is Purdue Pharma involving the ability of the bankruptcy court to limit third party liability (here the family running the company) as part of a bankruptcy settlement.  But the other two cases are potentially significant — Moore involves whether a tax on foreign assets is an income tax and Jarkesy involves the validity of administrative enforcement procedures.  Figuring out which justice is picking up a third “Fall” opinion is a little harder and will require taking January into account.  The three remaining candidates who do not have a December opinion are Justice Thomas, Justice Kavanaugh, and Justice Barrett.  For the reasons noted below, my hunch is that Justice Kavanaugh has this opinion.

January is the first of our months with a paired set of cases waiting for an opinion.  If there is only one authored opinion forthcoming that would give us eight authored opinions.  Adding January to the previous three months would give you twenty-seven authored opinions from the first four months or three opinions per justice.  As such, you would expect the eight opinions to come from the eight justices who only have two Fall opinions.  Since Justice Thomas and Justice Barrett have already authored a January opinion that leaves Justice Kavanaugh with the remaining December opinion and no January opinion.  If you get two opinions from the Chevron cases, either of these three could have the third December opinion with Justice Kavanaugh picking up one of the remaining cases.  My hunch is that we are getting one opinion covering the Chevron cases.  That means there are only two outstanding opinions from January — the Chevron cases and Smith (a case involving the ability under the Confrontation Clause for one expert to review another expert’s data and testify about their own conclusions without the original expert testifying, an issue that is rather significant in criminal law given that employees of forensic labs and medical examiners often change jobs or otherwise become unavailable).  Aside from Justice Kavanaugh, the two justices remaining for January are Justice Kagan (who already has a December opinion) and Chief Justice Roberts (who almost certainly has a December opinion).  Since that forces Justice Kavanaugh into the remaining December slot, these two would be the justices picking up the two January opinions.

My inclination is Chief Justice Roberts will have the Chevron cases.  I am not sure what the opinion will say about whether Chevron is overturned.  What it will say is that a certain reading of Chevron is wrong.  The law has rules about how to interpret statutes.  And some of those rules are tie-breakers.  For example, if after applying all of the other rules, there are two plausible interpretations of a criminal statutes, courts assume that the interpretation which criminalizes less conduct is the valid one.  I expect that the same will occur here.  Instead of holding that courts should defer to the administrative agency, the Supreme Court will say that, after applying all of the other doctrines to interpret whether a proposed regulation is allowed by the statute (which could be based on either the regulation being too broad or too narrow), if it is unclear that the regulation is valid, the court will uphold the validity of the regulation (or alternatively read the statute broadly to permit/require the broad version of regulatory authority or read the statute narrowly to only permit the narrow version of regulatory authority).  That leaves Justice Kagan with Smith.  Or, at least, initially with Smith as the last time that the Supreme Court addressed the issues raised by Smith the result was a 4-1-4 split, and the arguments did not give any clear indication that this time will go any better despite the four new justices who were not present the last time.

That brings us to February.  February started out as a potential 11 opinion month.  But one of the cases, involving whether Prisoner in the Dock Trump was eligible to run for President resulted in a per curiam opinion.  Assuming that the two social media cases result in one published opinion, that leaves one opinion per justice for February.   If those two cases are split, any justice could be picking up a second opinion with two exceptions.  First, Justice Sotomayor is almost certainly finished with her opinions for the year as she has seven total.  Second, if the two Chevron cases are split, whichever justice picks up the third December opinion will already have five through February while the other justices are currently on four total through February.  Assuming that the two cases are consoldiated, there are three justices without a February opinion — Justice Alito, Justice Gorsuch, and Justice Barrett.  Besides the social media cases, the other two outstanding case involves when the statute of limitations for challenging an administrative regulation begins to run and the validity of an environmental regulation.  On the social media case and the statute of limitations case, there are competing conservative interests at stake which mitigates to some degree the concern that a conservative justice will be writing the opinion.  There is no such countervailing interests in the environmental regulation case.  This Court does not like the EPA or the Clean Waters Act or the Clean Air Act and so, even though the regulation is objectively proper, it is likely to fall.

At this point, we still need more information for March and April.  There are twenty-one total cases with eleven from March and 10 from April.  If any justice has five opinions through February, that justice will be getting one opinion from March and one opinion from April.  For the remaining justice (which could be all nine justices), two justices will get a second March opinion and a different justice will get a second April opinion.  At this point, we already know one of the two justices who will get a second March opinion — Justice Sotomayor who has already issued her two March opinions and her one April opinion.    There are four justices who have yet to issue a March opinion — Justice Alito, Justice Gorsuch, Justice Barrett, and Justice Jackson.  So each of those will have, at least, one of the five remaining March cases.  But any of the eight justices (other than Sotomayor) could have the last March case.

We do not yet have a second opinion from any justice from April.  What we do know is that Justice Sotomayor should not have a second opinion from April and that, if any justice had five opinions through February, they will not have a second opinion from April, and that whichever justice picks up the last March case will not have a second April opinion.  But other than Justice Sotomayor, we do not know which justices will be out of the running for a second April opinion.  We only have three justices with April opinions to date:  Justice Thomas, Justice Alito, and Justice Sotomayor.  My hunch is that the Trump immunity opinion will either be written by the Chief Justice or will be a per curiam opinion (meaning that nobody gets a second opinion from April).  If the Chief Justice has the immunity case, he is unlikely to have a second April case.

With a 6-3 conservative majority, this time of year normally looks gloomy.  Out of the twenty-one plus cases, we are probably getting six written by Justice Kagan or Justice Jackson.  The other fifteen will be written by conservative justices which means that the results in many of the key cases are probably not great news.  Even if we get a liberal result on some of the cases, those wins are likely to be on narrow grounds that do not foreclose conservative activists getting another shot later.  The one piece of hopeful news is that Justice Thomas also has six opinions issued so far.  As such, he may be done for the term or, at most, have one April or March opinion.  When we get the major decisions, we will have posts on them as soon as possible.  We hope to get posts on this past week’s opinions out over the next several days (along with information about the June 25 primaries).