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. Continue Reading...