By the end of June, the Supreme Court is expected to issue 27 more decisions in argued cases, on topics ranging from the constitutionality of a World War I memorial in the form of a cross on public land to partisan gerrymandering and the decision to add a question about citizenship to the census.
We have no way of knowing precisely when each decision will be released, nor is there any way to know who is writing an opinion until it is announced in the courtroom. However, as the end of the term draws closer, sometimes it is possible to find some clues. The justices try very hard to divide up the opinion-writing workload evenly, not only over the course of the entire term but also from sitting (the two-week period each month in which the justices hear oral argument) to sitting. This means, for example, that if all but one case from a sitting has been decided, and all but one justice has already written an opinion for the court for that sitting, the remaining justice is probably writing the remaining opinion.
We can see this in the court’s October sitting, during which the justices heard 10 cases. One case, Knick v. Township of Scott, was originally argued on October 3, when the court had only eight justices, but it was later scheduled for reargument in January. The only other remaining case is Gundy v. United States, in which the justices are considering whether the Sex Offender Registration and Notification Act violates the nondelegation doctrine – which bars Congress from giving its legislative power to another branch of government unless it provides an “intelligible principle” to guide the government officials who will be implementing the law – because it gives the U.S. attorney general authority to decide whether the law’s registration requirement applies to sex offenders convicted before the law went into effect. Justice Sonia Sotomayor is the only justice who has not yet written for the October sitting, so she is likely writing in Gundy (which, like Knick, was argued before Justice Brett Kavanaugh joined the court). It’s not clear why the decision is taking so long, but it’s possible that the opinion is being carefully written to avoid a deadlock.
There is only one case remaining from the court’s November sitting: Virginia Uranium v. Warren, in which the justices are considering whether a federal law giving the Nuclear Regulatory Commission exclusive power to regulate activities relating to the processing of uranium ore trumps a Virginia law that bans uranium mining. However, there were 12 cases argued in the November sitting: Chief Justice John Roberts has already written two opinions and is therefore not likely to be the author in Virginia Uranium, but it’s impossible to predict at this point who will be.
There are two cases outstanding from the court’s December sitting: Carpenter v. Murphy, in which the justices are considering whether the reservation in eastern Oklahoma once given to an Indian tribe remains a reservation for purposes of the federal Major Crimes Act, thereby barring the state from prosecuting a Native American for a murder committed on that land; and Gamble v. United States, in which the justices are considering whether to overrule the “separate sovereigns” exception to the Constitution’s double jeopardy clause, which allows (for example) both the federal government and a state to try the same defendant for the same offense. Only Justice Samuel Alito has not yet written any opinions from December, so he will almost certainly be writing at least one of these decisions.
Two cases from January are also undecided: Knick, the case first argued in October, in which the justices are considering when property owners who claim that a local government has unconstitutionally “taken” their property can bring a lawsuit in federal court; and Tennessee Wine and Spirits Retailers Association v. Thomas, in which the justices are considering whether the Constitution allows a state to impose a two-year residency requirement for anyone who wants a retail license to sell alcohol there. Neither Roberts nor Alito has written an opinion for January yet, so they are good bets to write the decisions in these – although there is no way right now to predict who might be writing which one.
In each of the remaining sittings, there are more cases that remain outstanding than have been decided, making any guesses about who might be writing impossible. Looking at how many majority opinions each justice has produced so far, Justice Clarence Thomas leads the pack with seven: He is only missing an opinion from April, although he could still have an additional opinion from another month. Alito, on the other hand, has only two opinions so far, from October and November.
We’ll update this as more opinions are issued, giving us a fuller picture of who might be writing the decisions in different cases. And, of course, by the end of June we shouldn’t need to speculate at all, because all the opinions will have been released.
Thanks to Andrew Hamm for compiling the data on which this post is based.