The Supreme Court justices follow an informal protocol when assigning opinions to write in order to balance out the workload among all nine justices. This means that near the end of the term, it is sometimes possible to predict which justice is writing a particular decision. For example, if the justices heard twelve cases in a certain month, and all but one justice has authored opinions heard in that month, and there is only one decision from that sitting which has yet to come down, we can predict with some certainty that the remaining justice will be the author of the unannounced decision. At ADF, we call this “Supreme Court Bingo.” There are some additional rules and exceptions to this general rule, which makes it an inexact art at best. However, it provides fun for Supreme Court aficionados, especially near the end of the term when several big cases are soon to be announced, like the Obamacare decision.
Right now, the Court has six decisions left to hand down for the term. The Court has only one more day scheduled to announce decisions — Monday, June 25. I think it is unlikely that the Court will hand down all six decisions on Monday, in light of its past practice. What I and many other Court watchers expect is for the Supreme Court to announce that it will add another day later next week to announce decisions. I expect that day to be Wednesday, June 27 or Thursday June 28. Because of the complexity of the legal issues involved in the Obamacare case, I would expect it to be handed down on the last day.
So, I pulled out the Supreme Court Bingo card, entered the data we have now, and found that Supreme Court Bingo has limited predictive power on the author of the opinion in many of the cases. But there are some things we can say from the current data about the final six cases coming down:
U.S. v. Alvarez (whether the federal law criminalizing false statements about receiving military honors, like the Medal of Honor, violates the freedom of speech). This case challenging the constitutionality of the federal Stolen Valor Act is the last decision to come down from the February sitting. Only Justices Kagan and Kennedy have not authored decisions from that sitting, so one of them is probably the author of the opinion.
Miller v. Alabama and Jackson v. Hobbs (both cases concern whether a criminal sentence of life without parole to someone for a crime committed when he was 14 violates the Eighth Amendment’s bar on cruel and unusual punishment). This case is from the March sitting, and we can’t say who is writing those decisions. The Court heard seven cases in its March sitting, and three of them have not yet come down (including Obamacare). Therefore, the predictive powers of Supreme Court Bingo are unclear at this time. Thomas, Ginsburg, and Sotomayor have written three of the decisions from the March sitting, so any of the other six could be writing this decision. (The fourth opinion from March was a per curiam opinion, which had no announced author.)
Arizona v. U.S. (whether Arizona’s law on immigration is trumped by federal law) — Supreme Court Bingo at this time fails to give a prediction of the author of this decision. The Court heard six cases in April, and only one remains. The justices who have not written decisions from cases argued in April are Roberts, Kennedy, Thomas, and Ginsburg. Those four justices represent a pretty wide ideological range, so the outcome in the case will be very different depending on who is writing the decision.
U.S. Department of Health and Human Services v. Florida (challenge to Obamacare) — This gigantic amalgam of several cases with huge issues took an entire week of oral arguments at the Supreme Court last March. The high court heard seven cases in March. Four of those opinions have come down, one per curiam. The other three were authored by Thomas, Ginsburg, and Sotomayor. We may have a clearer picture of who is writing the Obamacare decision if the Court hands down the remaining decisions from the March sitting on June 25 and the Court waits to hand down the Obamacare decision later next week. However, Supreme Court Bingo may not work at all to determine the author of the decision because there are so many major issues in this case. I would not be surprised if there are multiple opinions in the case authored by different justices. It would be quite a task for one justice’s chambers to be writing about the tax question, the constitutionality of the individual mandate, and the Medicaid changes, as well as the severability issue.
First American Financial Corporation v. Edwards (whether a buyer of real estate has standing to sue when the purchaser was steered to a specific title company due to a kickback): This is the last case to come down from the December sitting. Justice Thomas is the only justice to have not yet authored a decision from the December sitting, so he is likely the author of the decision.
Stay tuned for next week.
— Jordan Lorence is senior counsel with the Alliance Defense Fund (www.telladf.org), which is actively defending marriage laws and amendments throughout the U.S.