Today proved to be a bustling session at the Court. The Justices issued five opinions, though none of them were earthshattering. I’ve gone through Cisco, Exxon, and Pung. I’ll tackle the remaining two in due course. In this write-up, I’ll venture some authorship forecasts for the cases still in play. Take these predictions for what they’re worth. (And unlike a growing number of tenured law professors, I don’t levy a subscription fee for my blog posts.)
Let’s proceed case by case.
In the October sitting, ten arguments were heard and all ten reached a decision. Justice Jackson authored two opinions, while each of the other Justices contributed one.
In the November sitting, nine arguments were heard and all nine produced opinions. Justices Kavanaugh and Jackson did not write from that sitting. Justices Gorsuch and Barrett each authored two opinions.
Eight cases were argued in the December sitting. Five of those matters have already been decided, and Hamm v. Smith was DIG’d. Two cases remain unresolved: Trump v. Slaughter and NRSC v. FEC. At this point, Justices Thomas, Kagan, Gorsuch, Barrett, and Jackson have written for December. The Chief Justice and Justices Alito, Sotomayor, and Kavanaugh have not yet written. Looking back to May, I suggested that Justice Alito lost the majority in Hamm. My forecast is that Chief Justice Roberts will author Slaughter and Justice Kavanaugh will author NRSC. I do not believe Justice Sotomayor has an opinion from this sitting.
Seven cases were argued in the January sitting. Three of those opinions were penned by Justices Thomas, Sotomayor, and Jackson. Four cases remain outstanding, and they are all of substantial consequence. First, I’m fairly confident Chief Justice Roberts will write Cook. This is the kind of decision he tends to keep for himself. But now that Jerome Powell is no longer Chairman of the Fed, Cook appears somewhat less urgent. I anticipate one Justice will issue a single opinion covering both Little v. Hecox and W.V. v. B.P.J. My top guess is either Justice Kavanaugh, who has shown a keen interest in women’s athletics, or Justice Barrett, who benefited directly from Title IX. The lone wild card would be if Justice Kagan, who has shown sympathy for the traditional view of Title IX, finds a narrow majority opinion that gains the Chief’s buy-in. Kagan currently has five majority opinions for the term, while Sotomayor and Jackson each have six. Kagan is due for a major opinion. Justice Gorsuch wrote Hemani, but I don’t think he will also write Wolford. Gorsuch is already at seven for the term. My sense is that whoever doesn’t handle the transgender-sports cases will write Wolford.
Seven cases were argued in February. All seven were decided already. Chief Justice Roberts and Justice Jackson did not author opinions from that sitting.
Eight cases were argued in March. Five have already been decided. Thus far, Chief Justice Roberts, and Justices Thomas, Alito, and Barrett have not authored opinions for March. Again, I expect Chief Justice Roberts to retain Trump v. Barbara for himself; this matter is too consequential to yield easily. Watson v. RNC weighs whether late-arriving ballots may be counted. If the Court affirms the Fifth Circuit, I’d expect Justice Alito to write the opinion; if the Court reverses, Justice Barrett would likely take the assignment. Mullin v. Al Otro Lado concerns non-citizens detained on the Mexican side of the border seeking asylum. I’d bet on Barrett or Alito—whichever does not author Watson—handling Watson as well.
Nine cases were argued in April, and six have already been released. Justices Alito, Kagan, and Kavanaugh have not yet written for April. The three outstanding cases are Monsanto, Chatrie, and Mullin v. Doe. The assignments here are tricky, given the uncertain outcomes. When Monsanto was argued, I suspected the chemical company would find it difficult to secure a five-vote majority. Alito and Kavanaugh seem solid for preemption. If they prevail, then Roberts and/or Barrett likely voted for preemption; if not, Kagan could deliver the majority opinion. Chatrie involves geofences under the Fourth Amendment; I could see Kagan or Kavanaugh as the author here as well. And Doe concerns the suspension of Temporary Protected Status for Haitians, Syrians, and other groups. I can imagine Kagan or Kavanaugh handling this one. On the other hand, the Haitian petitioners have asked the Court to DIG this case, so someone may have lost a majority opinion. I deem a DIG unlikely. The Solicitor General noted that the newly surfaced documents do not bear on the central issue in this case. Moreover, these records aren’t as blockbuster as those in the 2020 census matter. The files appear (to some) to reveal that political appointees shape policy. This fundamental point may provoke agitation among the Deep State, but it reflects a governance reality. See Slaughter.
Let’s see what Thursday has in store.
