[This post updates my earlier posts to account for the cases decided on Friday, June 21, and Monday, June 24.]
The justices now have just eight cases left to decide this term, but we’re still waiting on what are likely to be some of the biggest cases of the term.
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 (but not always) writing the remaining opinion.
There are no more tea leaves to read for October or November: All the cases from those sittings have been decided.
We continue to wait for just one case 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. Because all the justices have now written at least one opinion from December and the sitting had 10 cases, one justice will have to write another opinion. That is, of course, assuming the justices decide the case at all: Justice Neil Gorsuch is recused, leaving only eight justices participating. And the fact that the justices still haven’t resolved the case yet suggests that they may be struggling to come up with a solution that can get five votes.
With last week’s decision in the property rights case Knick v. Township of Scott, there is now just one case remaining from January: 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. Justice Samuel Alito is the only justice who has not written an opinion for January, so he is presumably writing the decision.
We are also waiting on just one case from the February sitting: United States v. Haymond, involving the constitutionality of a law that imposes additional prison time on a sex offender who violates the terms of his supervised release. Five justices – Alito and Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh – have already written opinions from February, so those justices are not likely to be writing Haymond, but it’s hard to say more than that.
In the March sitting, there are three (out of nine) cases outstanding: the partisan-gerrymandering cases Lamone v. Benisek and Rucho v. Common Cause; and Kisor v. Wilkie, in which the justices have been asked to overrule the doctrine of Auer deference. Chief Justice John Roberts has not yet written a decision from March, nor have Kagan or Gorsuch. This is a fascinating data point, because the cases could come out very differently depending on who is writing.
In the April sitting, we’re now down to just two cases: Mitchell v. Wisconsin, a challenge to the practice of drawing blood from suspected drunk drivers who are unconscious; and Department of Commerce v. New York, the dispute over the decision to include a question about citizenship on the 2020 census. Justice Stephen Breyer has already written twice in April, as have Sotomayor and Gorsuch; Justice Ruth Bader Ginsburg, Thomas, Kagan and Kavanaugh have also written. That leaves just Roberts and Alito as the only justices who haven’t written yet. Based on the oral argument, that probably bodes well for Wisconsin no matter who is writing and possibly for the federal government in the census case as well.
Thomas and Breyer have now written eight majority opinions each, while Sotomayor, Kagan, Gorsuch and Kavanaugh all have seven. Ginsburg has produced six opinions, while Roberts and Alito are bringing up the rear with five – but, in all likelihood, more to come very soon.
Thanks to Andrew Hamm for compiling the data on which this post is based.