On Monday the justices issued decisions in four merits cases. Although there is still a fair amount of ambiguity, those rulings (in addition to being important on their own) also help to shed some light on who might (or, equally significantly, might not) be authoring the opinions that have not yet been released.
A little bit of review here: The justices try very hard to spread out the opinion-writing workload, not only over the course of the term but also from sitting to sitting. This means that, if a particular sitting has only nine cases (as several sittings this term do), and all but one justice has already written an opinion for that sitting, that justice is likely writing the remaining opinion.
In October 2017, for example, all of the justices except Chief Justice John Roberts have already written an opinion, and the only case that has not yet been decided is Gill v. Whitford, the Wisconsin partisan-gerrymandering case. The prospect that Roberts is writing in Whitford almost certainly is giving the Wisconsin residents who challenged the redistricting heartburn, because Roberts was fairly hostile to their position at the oral argument last year. There have been suggestions that Roberts could be writing an opinion holding that the challengers in this case don’t have a legal right to challenge the whole map, and can instead challenge only their only districts; there have also been suggestions that Roberts may not be the author because this case will be decided in a joint opinion with Benisek v. Lamone, the Maryland partisan-gerrymandering cases, which was argued in March. We’ll obviously know more in the next three weeks or so.
All of the cases argued in the November sitting have already been decided. As in October, Roberts is the only member of the court who has not yet written for the December sitting. The only case outstanding from December is Carpenter v. United States, in which the justices are considering whether law-enforcement officials must get a warrant to obtain a cellphone owner’s records, which can reveal his location and movement over a period of time. Roberts wrote for the majority in the court’s 2014 decision in Riley v. California, holding that police generally need to get a warrant to look at digital information on the cellphone of someone who has been arrested, so the fact that Roberts is likely writing here may be good news for Carpenter.
There are three decisions left from the court’s January sitting: the water rights case Florida v. Georgia; Husted v. A. Philip Randolph Institute, the challenge to Ohio’s practice of removing voters from its voter-registration lists; and the trio of cases captioned Dalmazzi v. United States, which challenge the simultaneous service of judges on the U.S. Court of Military Commission Review and the courts of criminal appeals for the armed forces. Justices Stephen Breyer, Samuel Alito and Elena Kagan all have yet to write for January, but it’s hard to know at this point which justice is likely to be writing which opinion.
The February sitting, which featured (among others) the union-fees case Janus v. American Federation of State, County and Municipal Employees, is still wide open at this point. There were nine cases argued, but only three of them have been resolved. Two of those three resolutions were not on the merits: United States v. Microsoft, in which the justices were considering whether the software giant can be required to provide law-enforcement officials with emails stored overseas, was dismissed as moot after Congress passed legislation directly addressing that question, and in late May, the justices dismissed City of Hays, Kansas v. Vogt as improvidently granted. Only Breyer has written for February, and the two dismissals mean that two justices almost certainly won’t write opinions for this sitting – which in turn means that it will be next to impossible to suss out who is writing what for this month.
The justices have already issued half of the eight opinions expected for March. The remaining four opinions include two meaty ones (the abortion speech case NIFLA v. Becerra and the Maryland redistricting case Benisek v. Lamone) and two with lower profiles (Sveen v. Melin, involving the Constitution’s contracts clause and post-divorce life insurance policies, and China Agritech v. Resh, involving class actions and statutes of limitations). With four decisions left and five justices – Breyer and Kagan along with Justices Clarence Thomas, Ruth Bader Ginsburg and Sonia Sotomayor – who have not yet written opinions, here too it will be almost impossible to guess who is writing what. Perhaps the most important thing to note about March is who is not likely to be writing again: Roberts and Justice Anthony Kennedy have already written in March, which means that they are unlikely to be writing Benisek.
The justices have only issued decisions in two of the twelve cases argued in April, so it’s too soon to make any predictions for this sitting. But the picture will almost certainly become much clearer in the next few weeks. Stay tuned.
