The Supreme Court issued six new rulings in argued cases this week: four on Monday, and two more yesterday. The new opinions mean that 19 cases now remain undecided, but they did not shed a lot of new light on who might be writing those outstanding opinions.
Here’s what we do know. There is still one decision left for October: Gill v. Whitford, the Wisconsin partisan-gerrymandering case. Chief Justice John Roberts is the only justice who hasn’t written for October yet. If anyone is writing in Gill (more on this when we get to March), it almost certainly will be Roberts.
November was a light month, and all of the decisions for that sitting have already been issued. There’s only one case left from the December sitting: Carpenter v. United States, the cell-phone records case. Here too, Roberts is the only justice who has not yet written for the sitting, so we can expect him to be writing in Carpenter. As I mentioned last week, that is probably a good sign for Carpenter, because Roberts wrote for the court in Riley v. California, holding that police need a warrant to search the cellphone of someone whom they have arrested. I wouldn’t have expected a ruling for Carpenter to be unanimous, but it’s still a bit of a puzzler why the opinion is taking so long.
There are two cases left from the January sitting: the water-rights case Florida v. Georgia, and Dalmazzi v. United States, involving military judges and the “dual-officeholding” ban. There were nine cases in January; Justices Stephen Breyer and Elena Kagan are the only ones who haven’t written yet.
Five of the nine cases argued in the February sitting have still not been decided yet: Currier v. Virginia, Rosales-Mireles v. United States, Janus v. AFSCME, Ohio v. American Express, and Lozman v. City of Riviera Beach. There were two per curiam (that is, unsigned) opinions in February, which means that it will be almost impossible to game who is writing which opinion, even at the bitter end. The only thing we do know is that both Roberts and Breyer have already written for February, which means they are unlikely to be writing again.
The March sitting is nearly complete, with only two cases left: the abortion speech case NIFLA v. Becerra and Benisek v. Lamone, the Maryland partisan gerrymandering case. There were only eight cases in the March sitting, which means that three justices – Breyer and Justices Clarence Thomas and Sonia Sotomayor – haven’t written yet. There’s no way to game this one either, but it creates some interesting possibilities for the partisan-gerrymandering cases, because in 2004 Thomas joined an opinion by the late Justice Antonin Scalia concluding that courts should always stay out of partisan gerrymandering cases; Breyer took the opposite position, suggesting that it would be possible to find workable standards for courts to evaluate such claims. If Roberts and Thomas are both writing on partisan gerrymandering, it’s probably a bad sign for the challengers. Another scenario that has been the subject of speculation has Roberts writing an opinion in Gill holding that the challengers in that case lack a right to sue, while Breyer (or Sotomayor, although Breyer seems more likely) is writing an opinion allowing the partisan gerrymandering claims in Benisek to go forward. A third, dark-horse scenario is that the justices will eventually order reargument in the fall on both cases, along with a partisan gerrymandering case out of North Carolina.
Four April cases have already been decided (one with a per curiam opinion), but there are still eight remaining, making it way too soon to make any predictions. Hopefully we’ll have more insight on April and the other remaining months by lunchtime on Monday.