Amy Howe

Jun 18 2019

Reading the tea leaves – June 18

[This post updates my June 7 post to take into account the cases decided since then.]

Over the next 10 days or so, the Supreme Court is expected to issue 20 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 the cases but one from a sitting have been decided, and all the justices but one have 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.

Yesterday the justices finally issued their decision in the last case remaining from the court’s November sitting: Virginia Uranium v. Warren, in which the justices ruled that a federal law giving the Nuclear Regulatory Commission exclusive power to regulate activities relating to the processing of uranium ore does not trump a Virginia law that bans uranium mining.

Yesterday the justices also issued their decision in Gamble v. United States, rejecting a challenge to the “separate sovereigns” doctrine, which which allows (for example) both the federal government and a state to try the same defendant for the same offense despite the Constitution’s bar on double jeopardy. That leaves just one case 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. All the justices have now written at least one opinion from the December sitting; with 10 cases argued during the sitting, one justice will have to write again.

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, which asks 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 Chief Justice Roberts nor Justice Samuel 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.

Only two of the six cases argued during the February sitting remain outstanding: 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, and American Legion v. American Humanist Association, the challenge to the constitutionality of a 93-year-old cross, built as a war memorial, that stands in a traffic circle in the Washington, D.C., suburbs. Justices Elena Kagan and Clarence Thomas have already written opinions from February, as have Sotomayor and Kavanaugh, so those justices are not likely to be the authors of the remaining two opinions, but it’s hard to say more than that.

In the March sitting, six (out of nine) cases are still outstanding. Thomas and Sotomayor have already written opinions from March, as has Justice Ruth Bader Ginsburg, so those justices aren’t likely to be writing again for that sitting, but any other guesses about who might be writing are all but impossible at this point.

Similarly, Thomas, Ginsburg, Kavanaugh and Justice Stephen Breyer have all written opinions from April already, but eight of the dozen cases argued in April have not yet been decided. Three justices will have to write twice, making predictions difficult here as well.

Looking at how many majority opinions each justice has produced so far, Justice Clarence Thomas leads the pack with eight. Three justices – Ginsburg, Breyer and Kavanaugh – have produced six opinions, while three more – Sotomayor, Kagan and Gorsuch – have five opinions. Roberts has written four opinions, while Alito has only three opinions so far.

We’ll update this as more opinions are issued, giving us a fuller picture of who might be writing the decisions in different cases.

Thanks to Andrew Hamm for compiling the data on which this post is based.

Amy L Howe
Until September 2016, Amy served as the editor and reporter for SCOTUSblog, a blog devoted to coverage of the Supreme Court of the United States; she continues to serve as an independent contractor and reporter for SCOTUSblog. Before turning to full-time blogging, she served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there. From 2004 until 2011, she co-taught Supreme Court litigation at Stanford Law School; from 2005 until 2013, she co-taught a similar class at Harvard Law School. She has also served as an adjunct professor at American University’s Washington College of Law and Vanderbilt Law School. Amy is a graduate of the University of North Carolina at Chapel Hill and holds a master’s degree in Arab Studies and a law degree from Georgetown University.
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