After today’s hand-down, there are eight outstanding decisions. The Court has scheduled a special sitting on Thursday, so the final day of the term will likely be on Monday. (They may add a special sitting on Friday, but that seems unnecessary with only seven cases left over).
Let’s play our favorite end-of-the-term game, guess the assignments! (Please note that I’ve tried this in the past, and do not have a particularly good track record, so read at your own peril). What complicates this further is the fact that opinions may have been assigned to Scalia, and then reassigned.
During the December sitting, ten cases were argued. So far, Kennedy has 1 , Thomas has 1, Ginsburg has 1, Alito has 1, Sotomayor has 1, Kagan has 1, and Breyer has 2. Roberts and Scalia have 0. Outstanding from the December sitting are Fisher v. University of Texas and Dollar General v. Choctaw. It is possible that one of Breyer’s decisions was originally assigned to Scalia, and it was reassigned to him afterwards. Breyer wrote Franchise Tax Box Board, a 6-2 decision released on 4/19, and Harris v. AZ, an 8-0 decision released on 4/20. If Scalia was originally in the majority in Franchise Tax Board, then he would have assigned the opinion, because the Chief was in dissent. Harris seems like an unlikely assignment for Scalia, as it is a unanimous voting rights decision–give it to the jurist who loves making Democracy work. So may guess is that Scalia was assigned Dollar General, which raises meaty issues of tribal court jurisdiction–something Nino can really sink his teeth into. If in fact Scalia was assigned Dollar General, that would mean the Chief Justice originally assigned himself Fisher–not Justice Kennedy. Perhaps there were finally five votes to reverse the Fifth Circuit–with an AMK concurring opinion like in Parents Involved? But, down to seven Justices, whatever the Chief may have had in mind for Fisher is probably not what will happen. So if I had to guess, the Chief will write in both Fisher and Dollar General.
(Update on December. A commenter reminded me that Franchise Tax Board divided 4-4 on the first question of whether Nevada v. Hall ought to be overruled. Then Justice Breyer’s opinion moved onto the second question, finding that Nevada’s taxation is unconstitutional. Roberts and Thomas were in dissent. So it is possible that Scalia assigned himself that opinion, and was the fifth vote. If there were five votes, there would be no need to reach the second question. But with Justice Scalia’s passing, Kennedy would have assigned Breyer had to write Part II of the opinion. In any event, I don’t think this affects my prediction that the Cheif will write Fisher. If Scalia originally had Franchise Tax Board, Dollar General may be assigned to someone else).
During the January sitting, nine cases were argued, seven were decided on the merits, Freidrichs v. California Teachers Association was affirmed on a four-to-four margin, and Duncan v. Owens was DIG’d eight days after it was argued. There are no outstanding cases. I can say with great certainty that Alito was slated to write Freidrichs, in light of his prior decisions in Knox v. SEIU and Harris v. Quinn. It was possible that Scalia was not assigned an opinion for this sitting–it happens with a DIG. In any event, nothing left to predict. But we can guess what could have been.
During the February sitting, 10 cases were argued. Only Voisine and Whole Women’s Health are outstanding. Both cases were argued after Justice Scalia’s passing, so predicting the authorship is even more complicated. So far from that sitting, Thomas and Alito have 2, and with one opinion are Roberts, Kennedy, Ginsburg, and Sotomayor. Breyer and Kagan have zero. Williams v. Pennsylvania (the 5-3 judicial bias case) and Whole Women’s Health were argued on the same week. Justice Kennedy was the most senior Justice in both cases. He kept Williams for himself. Could it be that Justice Kennedy assigned Whole Women’s Health to Kagan? And over Ginsburg, who was assigned Hughs v. Talen the week before? In that case, Breyer is stuck with Voisine, yet another 922(g) case. My predictions: Kagan for Whole Women’s Health and Breyer for Voisine.
All of the cases from the March sitting have been decided, so there is nothing left to predict. Notably, Ginsburg and Kennedy both had two opinions, and the rest had one.
This brings us to the April sitting, the final sitting of the term. There were ten cases argued, and there are four cases outstanding: US v. Texas, Birchfield v. ND, Mathis v. US, and McDonnell v. US. One opinion has been assigned to Thomas, Kennedy, Kagan, Breyer, Sotomayor, and Ginsburg. Kennedy wrote the majority opinion today in Encino v. Navarro. If this is is only June assignment, what a letdown from last year! With zero assignments are Roberts, Breyer, and Alito. I predict that Justice Breyer was assigned the opinion in McDonnell because he was very agitated during oral arguments against the federal prosecution, because it would make it harder for democracy to work. Flip a coin, and assign Birchfield or Mathis to Alito, and one other burdened Justice. I won’t lose any sleep over those.
And everyone knew how this Term would end. The Chief will announce the outcome in U.S. v. Texas. Either he writes a majority opinion ruling against Texas, or he announces the case is rescheduled for argument next term, or it is affirmed 4-4. I think the last option is the most unlikely. If the Court was going to affirm 4-4, they would have done so much earlier, as we saw with Friedrichs. A 4-4 doesn’t sit around till the last day of the term. However, the second option, restoring to the calendar, does wait around till the last day of the term. The Court did this with Citizens in June 29, 2009, the last day of the term. So if the Court does not decide the case on Thursday, there is a slightly greater chance the Court reargues it.
But we all know how this ends. Every June, the Chief finds a different way to break my heart. (Zubik doesn’t count for this year, because it broke my heart in May).
Whenever I write these posts, #LawTwitter quickly tells me why I’m wrong. I’m sure they’re right. This is all pure speculation, made even harder by the Senior Associate Justice missing more than half the term.