Amy Howe

Jun 29 2020

And then there were nine — The term’s remaining decisions

With today’s release of the opinions in Seila Law v. CFPB and June Medical Services v. Russo, both of which were part of the court’s February argument session, there is now only one outstanding decision that predates the court’s historic May argument session: Espinoza v. Montana Department of Revenue, argued in January. Justice Brett Kavanaugh was first out of the box today with an opinion from the May argument session, a 5-3 ruling in U.S. Agency for International Development v. Alliance for Open Society International. The May session included several other cases on which the justices are likely to be closely divided, such as the controversy over access to the president’s tax returns and a dispute over whether a large section of eastern Oklahoma is an Indian reservation.

Here is a list of the remaining cases, along with (when available) predictions about who may be writing the decisions. But you should take the predictions with a grain of salt, because they are only predictions: For example, the conventional wisdom was that Chief Justice John Roberts, Justice Ruth Bader Ginsburg or Justice Brett Kavanaugh would write the opinion in the Title VII cases, because none of those justices had written opinions for the court’s October session yet. But in the end it was Justice Neil Gorsuch – who had already written an opinion for October – who wrote last week’s historic decision, leaving Gorsuch with two opinions for the October sessions and his three colleagues without any.

Espinoza v. Montana Department of Revenue (argued January 22, 2020): Challenge to a decision by the Montana Supreme Court invalidating a tax-credit program because the scholarships created by the program could be used at religious schools. Roberts and Justice Stephen Breyer have not yet written opinions for January; because the January argument session only had eight arguments, one of them will not write an opinion.

U.S. Patent and Trademark Office v. Booking.com (argued May 4, 2020): Whether the addition of “.com” to an otherwise generic term by an online business can create a protectable trademark.

Little Sisters of the Poor Sts. Peter and Paul Home v. Pennsylvania (consolidated with Trump v. Pennsylvania) (argued May 6, 2020): Whether the expansion of the conscience exemption from the Affordable Care Act’s birth-control mandate violated the ACA and the laws governing federal administrative agencies.

Barr v. American Association of Political Consultants (argued May 6, 2020): Whether an exception for government-debt collection to a federal law that bars robocalls to cellphones is unconstitutional.

Our Lady of Guadalupe School v. Morrissey-Berru (consolidated with St. James School v. Biel) (argued May 11, 2020): Whether courts can hear employment discrimination claims brought by teachers at Catholic elementary schools.

McGirt v. Oklahoma (argued May 11, 2020): Whether land set up in the 19th century in eastern Oklahoma for the Creek Nation remains a reservation for purposes of a federal law that requires some major crimes committed on a reservation by or against Indians to be prosecuted as federal crimes.

Trump v. Mazars USA (consolidated with Trump v. Deutsche Bank) (argued May 12, 2020): Whether congressional committees have the authority to issue subpoenas to the president’s accountant and creditors for financial records belonging to the president and his business entities.

Trump v. Vance (argued May 12, 2020): Whether the Manhattan district attorney can obtain the president’s tax returns as part of a state grand-jury investigation.

Chiafalo v. Washington and Colorado Department of State v. Baca (argued May 13, 2020): Whether state “faithless elector” laws, which require presidential electors to vote the way that state law directs, are constitutional. Although both cases involve the same issue, they were argued separately because Justice Sonia Sotomayor is recused from the Colorado case. It is possible that the court could release one “main” opinion that addresses all of the issues in the disputes and then issue a short decision that disposes of the second case, based on the first opinion, without a lengthy analysis.

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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