Authorship Predictions For The Remaining Cases

Today was a busy day at the Court. The Justices handed down five opinions, though none were major. I’ve read Cisco, Exxon, and Pung. I’ll finish the other two later. Here, I’d like to venture authorship predictions for the outstanding cases. These guesses are worth what you paid for them. (And unlike an increasing number of tenured law professors, I do not charge a subscription fee for my blog posts.)

Let’s go sitting-by-sitting.

Ten cases were argued in the October sitting and all ten were decided. Justice Jackson had two opinions, and the other Justices each had one.

Nine cases were argued in the November sitting and all nine were decided. Justices Kavanaugh and Jackson had none. Justices Gorsuch and Barrett each had two.

Eight cases were argued in the December sitting. Five of those cases were already decided, and Hamm v. Smith was DIG’d. Two cases remain outstanding: Trump v. Slaughter and NRSC v. FEC. So far, Justices Thomas, Kagan, Gorsuch, Barrett, and Jackson have written for December. The Chief Justice and Justices Alito, Sotomayor, and Kavanaugh have not yet written.  In May, I speculated that Justice Alito lost the majority opinion in Hamm. I predict that Chief Justice Roberts has Slaughter and Justice Kavanaugh has NRSC. I do not think Justice Sotomayor has an opinion from the sitting.

Seven cases were argued in the January sitting. Three of those cases were authored by Justices Thomas, Sotomayor, and Jackson. Four cases remain outstanding, and they are all huge. First, I am reasonably confident Chief Justice Roberts will write Cook. This is the sort of case he will certainly keep for himself. But now that Jerome Powell is no longer Chairman of the Fed, Cook seems must less hot. I suspect one Justice will write a single opinion for both Little v. Hecox and W.V. v. B.P.J. My best guess is Coach Kavanaugh, who has a special interest in female athletics, or Justice Barrett, who was a direct beneficiary of Title IX. The one wildcard will be if Justice Kagan, who was sympathetic to traditional view of Title IX, finds a way to write some narrow majority opinion that convinced the Chief. Kagan only has five majority opinions for the term, while Sotomayor and Jackson both have six. Kagan is due for a big one. Justice Gorusch wrote Hemani, but I don’t think he also writes Wolford. Gorsuch is already at seven for the term. My guess is that whoever doesn’t write the transgender sports cases will write Wolford.

Seven cases were argued in February. All seven cases were already decided. Chief Justice Roberts and Justice Jackson did not write from that sitting.

Eight cases were argued in March. Five were already decided. So far, Chief Justice Roberts, and Justices Thomas, Alito, and Barrett have not written for March. Once again, I think Chief Justice Roberts will keep Trump v. Barbara for himself. This case is too important to give up. Watson v. RNC considers whether late-arriving ballots can be counted. If the Court affirms the Fifth Circuit, I think Justice Alito has the opinion; if the Court reverses the Fifth Circuit, Justice Barrett will have the opinion. Mullin v. Al Otro Lado concerns aliens who are detained on the Mexico-side of the border and seek asylum. I suspect Barrett or Alito–whoever does not write Watson–will have Watson.

Nine cases were argued in April, and six were already released. Justice Alito, Kagan, and Kavanaugh have not yet written for April. The three outstanding cases are: Monsanto, Chatrie, and Mullin v. Doe. These assignments are a bit tricky to make since I am not sure how these cases will turn out. When Monsanto was argued, I thought it would be tough for the chemical company to count to five. Alito and Kavanaugh are solid votes for preemption. If they have the majority, then Roberts and/or Barrett voted for preemption. But if not, Kagan has the majority opinion. Chartrie is a Fourth Amendment case about geofences. I could see Kagan or Kavanaugh getting this case as well. And Doe concerns suspension of Temporary Protected Status for Haitians, Syrians, and other groups. I could see Kagan or Kavanaugh getting this one. Then again, the Haitian plaintiffs have asked the Court to DIG this case, so someone may have lost a majority opinion. I think a DIG is unlikely. The SG replied that the newfound documents do not concern the issue at play in this case. Moreover, these documents are not blockbusters like the submissions in the 2020 census case. The records seem to show (shockingly!) that political appointees make policy decisions. This basic point may upset those in the Deep State, but reflects a reality of governance. See Slaughter.

Let’s see what Thursday brings.