It’s that time of year. With only seven decisions left to be handed down by the Supreme Court, and three decision days left in the term, we can start reading the tea leaves about who will be authoring which of the remaining decisions, and in some cases guess at the outcome as a result.
Here’s how I’m making my own (tenuous) predictions. We know that there were a total of 66 cases argued before the Court this term. And the assigning justices attempt to balance the workload of majority opinion assignments within each sitting as well as across the term. So I’m assuming each justice will end the term with at least 7 majority opinions, and three justices will get 8 opinions.
January’s sitting makes for an easy prediction: there’s only one case and one justice remaining. That makes it very likely that Justice Kennedy has the majority in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, a case considering whether the Fair Housing Act includes disparate impact causes of action. This is an issue the Court has been attempting to decide for years. In previous cases, the federal government repeatedly settled at the last minute in what was widely viewed as an effort to put off an inevitable finding that a “disparate impact” standard had been smuggled into the FHA without any statutory basis. Justice Kennedy only asked one question during oral arguments, and that was critical of the government’s position, so it’s a reasonable bet that the hour of reckoning has finally come for disparate impact under the FHA.
March’s sitting is similarly straightforward. The remaining case for that sitting is Utility Air Regulatory Group v. EPA (combined with two related cases), and the outstanding justice is Justice Scalia. During arguments it seemed clear that Scalia thought the EPA wrongly failed to consider costs in its regulation of air pollutants emitted by electric utilities. This is probably yet another loss for the administration, but Scalia also wrote the majority opinion in Whitman v. American Trucking Associations, Inc., a very similar 2001 case under a different statute holding that costs need not be considered. We can’t be quite sure.
If I’m right about those two sittings, then the Justices are left with the following case totals:
Kennedy appears to have at least a couple more opinions in the works, as well as the Chief and Ginsburg.
February has two cases and three possible justices left, so here the tea leaves start to get murkier. The cases are Arizona State Legislature v. Arizona Independent Redistricting Commission (an Elections Clause case) and King v. Burwell (the Obamacare subsidies case). The justices without February cases are Roberts, Kennedy, and Ginsburg. I’m betting Roberts and Kennedy are the two on these cases and that the Chief writes King, leaving the comparatively humdrum Arizona case for Kennedy. This Chief is known for keeping the best writing assignments to himself, and King is certainly one of the top cases of the term. Plus, the Chief is widely viewed as the swing vote on this case, especially in light of his flip-flop on the previous Obamacare case. So even if I’m right about the authorship in each case, that doesn’t give us a whole lot of insight about what the result will be.
Finally, the April cases we’re waiting for are Johnson v. United States (whether mere possession of a short-barreled shotgun is a violent felony), Glossip v. Gross (the constitutionality of a lethal injection drug protocol), and Obergefell v. Hodges (the marriage cases). There are five justices – Scalia, Kennedy, Ginsburg, Alito, and Sotomayor – without April writing assignments because it was the shortest sitting of the term. Of those, I’m ruling out Scalia since he likely will have already written eight opinions, and ruling in Kennedy and Ginsburg who stand (including my guesses) at only 6 apiece. If, as most commentators predict, Kennedy votes to redefine marriage nationwide, he will be both the swing vote in that case and the ranking justice who assigns the drafting of the majority opinion. Thus he will almost certainly take that one himself to finish his oeuvre in Lawrence and Windsor. If the Court upholds the three-drug execution protocol at issue in Glossip – and the oral arguments suggest it will – Alito is the likely author. That leaves Johnson for Justice Ginsburg to round out her share of the cases. After oral argument it seemed like there was a broad coalition, including Ginsburg, ready to strike down part of the Armed Career Criminals Act as unconstitutional, effectively nullifying the specific question at issue regarding possession of a shotgun.
Here’s a final bonus guess: given the three remaining scheduled decision days (Thursday, Friday, and next Monday), and seven remaining cases, each day this week will get two cases and the final Monday three, to include Obergefell and maybe one other decision from Justice Kennedy, simply because he’s clearly been swamped lately. That last Monday decision could easily be King, but I’m hoping we get it earlier simply so we don’t have to process more than one major decision at a time. The rest I leave to your own speculation.