As has been discussed in multiple posts over the years, the Supreme Court has a lot of conventions related to opinions. First, opinions are assigned by the senior justice (either the Chief Justice or the Associate Justice with the most seniority) in the majority. Second, in making those assignments, there is an effort to spread the work around — both within each months argument session and across the term as a whole. Third, the most junior justices tend to get the less significant cases. But the events of this week creates a potential situation where one of the last two conventions might be about to be broken as the second convention hints that Justice Jackon has the Presidential Immunity case but the third convention says that’s not possible.
Going into this week, we were down to 12-14 opinions, and these conventions gave us some hint of what was to come down. And then reality struck and has tossed us a big curveball. To further understand the process, one detail about the Supreme Court’s conventions. On opinion days, the Supreme Court starts releasing opinions at 10 a.m. Eastern Time. In releasing opinions, they move from the most junior justice to the most senior justice (the Chief) with any per curiam (unsigned) opinion released after all of the signed opinions. When a justice has more than one opinion, it is unclear if the justice chooses which case is released first or if it goes by case number or argument date.
So back to where we were before the first opinion day this week (Wednesday). We were done with cases from October and November. We had two cases left from December. To keep balance for the term, every justice needed, at least, two opinions through December and the Chief Justice and Justice Gorsuch only had one opinion each. (Because there were nineteen opinions, one justice would have three opinions, but we already knew that justice was Justice Kavanaugh.
Similarly, we had one or two opinions left from January resulted in one opinion or two (since Justice Jackson was recused in one of the two cases). If there was one opinion, every justice should have exactly three opinions through January. Every justice had already issued three opinions through January other than Justice Gorsuch who had two opinions (but should be picking up one of the December opinions) and the Chief Justice who only had one opinion (two if you include the likely December opinion).
Thus, we had a pretty good idea about December and January other than not knowing which case in December would go to Justice Gorsuch and which would go to the Chief Justice.
February was a little bit murkier. There were enough cases in February to get everyone a fourth opinion for the term. As in January, there were two closely-related cases (involving state regulations of social media websites and the First Amendment) which could result in either two opinions or one opinion. Heading into the week, there were at least three opinions outstanding with Justices Gorsuch, Alito, and Barrett due for an opinion. That possibility of two opinions in the social media cases is something that we will come back to.
We had one case left from March. There were enough cases argued in March that every justice should have gotten an opinion with two justices getting a second opinion. And two justices had gotten two opinions, but one of the cases ended up with a per curiam opinion. That left two justices without an opinion — Justice Alito and Justice Barrett. There were signs in the per curiam opinion (namely his lengthy concurrence addressing a second issue in the case) that Justice Alito probably was originally assigned the case and lost it after he circulated his opinion (probably after the April cases had been assigned).
And that left us with April. Heading into the week, we had five cases left and five cases in which justices had already written opinions. Given the total case load for the term, each justice should have at least six opinions. Depending on what happened with the outstanding cases, several justices would have seven opinions. The four justices without April opinions were the Chief Justice, Justice Gorsuch, Justice Kavanagh, and Justice Jackson. Justice Thomas and Justice Sotomayor already had seven opinions and would not be in the mix for the extra opinion from April. Assuming that things went as expected from the earlier months, everyone would have at least five opinions through March (other than Alito have lost one opinion after all the cases had been assigned) and, thus, any justice could have be in the mix to join Justice Thomas and Justice Sotomayor with a seventh opinion (although it was more likely to be one of the more senior justices).
Now on to how the week unfolded. The first case out on Wednesday was the remaining case from March, and as the speculation that Alito was the justice who had lost the per curiam case suggested, the opinion was written by Justice Barrett. The second case out was one of the five cases from April (a bribery case that will be discussed later), and it was written by Justice Kavanaugh leaving the Chief Justice, Justice Gorsuch, and Justice Jackson to write opinions in April along with a mystery justice.
Wednesday afternoon was the first curveball. Somebody at the Supreme Court screwed up and posted an opinion early. (Opinions are posted as they are released in the courtroom.) It was quickly removed but not before a news agency downloaded it. That opinion was a per curiam opinion on the April abortion case. So everybody was expecting that opinion to be officially released on Thursday morning. If the posted opinion was accurate (and it appeared to be formatted for release), that would remove the “extra” opinion from April. And the text made it seem like the opinion was the initial vote rather than a case that some justice had started writing and then lost. So we were now down to three April cases and three justices.
Thursday started with two opinions from Justice Gorsuch — one from February striking down an EPA regulation and one from December in the Purdue Pharma case. So far things were going as expected. Then you had the opinion in the other December case (an administrative law case) from the Chief Justice. And the day wrapped up with the leaked per curiam case from April.
So at the end of the day on Thursday, the thought was the Chief Justice will have one opinion covering the two January cases. Justice Alito and Justice Barrett will have the cases from February. The Chief Justice will have presidential immunity from April and Justice Gorsuch and Justice Jackson will split the other two April cases (ban on homeless sleeping in public areas and January 6).
The first case on Friday was from Justice Gorsuch and was the Eighth Amendment case on laws governing homeless persons sleeping in public spaces. The initial thought was that meant that Justice Jackson had the January 6 cases. The next opinion was from the Chief Justice on the two January Chevron deference case. Then we heard that the Chief Justice had a second opinion. Did that mean that we were about to get Presidential Immunity. And then came the second curveball of the week. The Chief Justice had the January 6 case (with Justice Jackson concurring).
Monday will be the last opinion day of the term. We will get the two or three cases from February and the presidential immunity case from April. And I am clueless on what is happening.
Option Number 1 is that Justice Barrett and Justice Alito have separate opinion in the two cases involving state laws regulating social media websites ability to regulate posts. If that is the case, Justice Jackson might have the other case from February (the deadline for challenging regulations). I am just not seeing why there are two separate opinions in those two cases. In which case, the Presidential Immunity case is probably from the Chief Justice or a per curiam opinion.
Option Number 2 is what is implied by what happened on Friday. Justice Jackson has the Presidential Immunity case. It is almost unheard of for a justice in her second term on the Supreme Court to have such a major opinion. You almost have to go back to Justice Blackmun getting Roe to find a similar circumstance and, in that case, you had three new Associate Justices.
Option Number 3 is that there are only two opinions from February but Justice Jackson does not have Presidential Immunity. But that would leave Justice Jackson with only five opinions from the term. While Justice Alito also only has five opinions, it is pretty clear that he lost his sixth opinion (and almost certainly after all of the cases had been assigned). But this seems bizarre. I have looked back at the opinions from the last week in April, and they include a unanimous opinion assigned to Justice Sotomayor. By the normal conventions, if the Chief’s decision was to write the Presidential Immunity case himself or have it as a per curiam opinion, then the case assigned to Justice Sotomayor should have been assigned to Justice Jackson. Or since Justice Jackson was in the majority in the January 6 case, she could have gotten that case if the Chief was intending to write the Presidential Immunity opinion.
In short, it seems like Justice Jackson could have the Presidential Immunity case, but it would be shocking if she did. In any case, we should know at 10:00 a.m. Eastern Time on Monday when the Supreme Court starts releasing the final opinions. Either Justice Jackson has an opinion in some case (in which case she will be first to announce an opinion) or Justice Barrett will start with her February opinion.
