On Monday, the Supreme Court issued three more opinions in argued cases, resolving cases involving the NCAA and antitrust law, securities law and the Constitution’s appointments clause. As we come down to the last week in June, the court still has 12 more opinions to go, on topics ranging from voting rights to whether schools can regulate off-campus speech by students.
There is no way to know when a particular decision will be released, nor is there any way to know which justice is the author of a particular decision until it is released on the court’s website. Having said that, as the end of the court’s term draws closer, you can sometimes find some clues. The justices try very hard to divide the workload of opinion writing evenly, not only over the course of the term but also from month to month. This means, for example, that if only one case remains undecided from a particular month’s argument calendar, and there is only one justice who has not yet written an opinion that month, that justice is probably writing the remaining opinion.
But even when you can narrow the potential authors of an opinion to only a few justices, any predictions about who might be writing any opinion are just that – predictions. Until the court released its opinions in two November cases – Fulton v. City of Philadelphia, in which the court ruled that Philadelphia violated the Constitution when it stopped working with a Catholic organization that refused to work with same-sex couples, and California v. Texas , in which the court ruled that none of the plaintiffs had a legal right to challenge the constitutionality of the Affordable Care Act – the conventional wisdom had Chief Justice John Roberts taking the ACA case and Alito (who has been the author of several important decisions involving religion) writing in Fulton. But when the decisions were released on June 17, Justice Stephen Breyer had the court’s opinion in the ACA case, while Roberts wrote the court’s 15-page opinion in Fulton. (There is some speculation that perhaps Alito’s 77-page concurring opinion in Fulton started out as a majority opinion, but that too is just an educated guess.)
There is only one opinion remaining from the court’s December calendar: the consolidated cases Collins v. Yellen and Yellen v. Collins (argued Dec. 9, 2020) are a $124 billion dispute arising from the 2008 housing crisis, which prompted Congress to create the Federal Housing Finance Agency to regulate mortgage giants Fannie Mae and Freddie Mac. FHFA entered into an agreement with the Treasury Department to provide funding for Fannie and Freddie; a 2012 amendment to that agreement led to the case now before the court. Three shareholders challenged the amendment, arguing both that the FHFA and the Treasury Department lacked the authority to enter into the amendment and that, in any event, the statute that created the FHFA is unconstitutional because it only allows the president to fire the agency’s director “for cause.” The Supreme Court agreed last year to weigh in on those questions.
Gaming the court’s December calendar to determine who might be writing in Collins isn’t easy. The justices issued not one but two unsigned opinions – in the census case Trump v. New York and a brief decision in Republic of Hungary v. Simon sending the case back for further review in the wake of its decision on the same day in Federal Republic of Germany v. Philipp. They also dismissed one December case, Henry Schein, Inc. v. Archer and White Sales, as improvidently granted. Breyer, Alito and Gorsuch have not yet written a signed opinion for December; we also know that Breyer, who dissented in the census case, would not have been the author of that unsigned ruling.
With only five arguments in total, January was a light month for the justices. The only case from January that has not yet been decided is Johnson v. Guzman Chavez (argued Jan. 11, 2021), involving a technical but significant question of immigration law: whether noncitizens whose deportation orders have been reinstated, and who therefore would normally be deported without any real formal process, have a right to be released on bond if they also have a claim that would bar their removal to another country under the Convention Against Torture. Roberts and Alito have not yet written opinions for January, nor have Justices Sonia Sotomayor and Elena Kagan.
There are now only two opinions remaining from the court’s February calendar. In Lange v. California (argued Feb. 24, 2021), the justices are considering the case of a northern California man who failed to stop when a California Highway Patrol officer who had been following him in his car turned on his overhead lights. Instead, Arthur Lange continued to his home and into his garage, where the officer followed him – and, the officer said, smelled alcohol. Testing revealed that Lange’s blood-alcohol level was nearly three times the legal limit. The question before the Supreme Court is whether the officer’s entry into the garage was justified, even though he did not have a warrant, because he was in “hot pursuit” of Lange.
In Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee (argued Mar. 2, 2021, but considered part of the February argument calendar), the court is considering challenges to two different Arizona voting rules. The first, known as the “out of precinct” policy, requires election officials to discard an entire ballot if it was cast in the wrong place. The second bans “ballot harvesting” – the collection of ballots by third parties. Arizona’s attorney general and the state’s Republican Party went to the Supreme Court after the U.S. Court of Appeals for the 9th Circuit ruled that both policies violate Section 2 of the federal Voting Rights Act, which bans racial discrimination in voting.
With only six opinions expected, the February argument calendar will be a tough one to game. Roberts, Sotomayor, Gorsuch have all already written for February, so they are unlikely to write again, as is Justice Amy Coney Barrett, who wrote for the court in the interstate water battle Florida v. Georgia.
Two opinions are outstanding from the March calendar. The first is Cedar Point Nursery v. Hassid (argued Mar. 22, 2021), a challenge to a California regulation that allows union organizers to enter the property of agricultural businesses to speak with employees about supporting a union. Two California businesses argued that by giving the organizers access to their property, the regulation created a legal right to use the property without their consent or compensation, in violation of the Fifth Amendment. The lower courts rejected that argument, but the Supreme Court agreed in November 2020 to review the question.
And in TransUnion LLC v. Ramirez (argued Mar. 30, 2021), the justices are considering whether either the Constitution or the federal rules governing class actions allow a case alleging a violation of the Fair Credit Reporting Act to go forward, even when most members of the class were not harmed at all and any harm that they did suffer was nothing like that of the lead plaintiff.
Because we are only expecting six opinions for March, we likely can rule out the four justices who have already written in March – Thomas, Breyer, Gorsuch and Barrett – as authors of the four remaining decisions. Without any more information, however, it’s almost impossible to make any other predictions at this point.
After lighter argument schedules in the first part of 2021, the justices finished off the term with a bang, hearing 12 arguments in April – and adding an extra argument in May. First up (on Apr. 19, 2021) were the consolidated cases Yellen v. Confederated Tribes of the Chehalis Reservation and Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation, in which the court is considering whether Alaska Native corporations – special corporations created by Congress in 1971 to receive land and money under the Alaska Native Claims Settlement Act, which settled land claims by Alaska natives – are “Indian tribes” eligible to receive millions of dollars in federal COVID-19 relief funding.
In Minerva Surgical v. Hologic (argued Apr. 21, 2021), the justices are considering whether to abolish a doctrine known as patent assignor estoppel, which bars an inventor from challenging the validity of the patent on his own invention – for example, when he is sued for patent infringement after assigning the rights to the patent to someone else.
Americans for Prosperity Foundation v. Bonta and Thomas More Law Center v. Bonta (argued Apr. 26, 2021) are a pair of challenges by two conservative advocacy groups to a policy of the California attorney general’s office that requires charities to disclose the names and addresses of their major donors. The 9th Circuit rejected the groups’ argument that the policy violates the First Amendment, and the Supreme Court agreed in January to take up the case.
The question before the court in HollyFrontier Cheyenne Refining v. Renewable Fuels Association (argued Apr. 27, 2021) is whether small oil refineries can take advantage of a compliance exemption in the Renewable Fuel Standard program, which is part of the Clean Air Act, if they have not received that exemption every year since 2011.
Mahanoy Area School District v. B.L. (argued Apr. 28, 2021) is sometimes colloquially known as the case of the “cussin’ cheerleader.” Then-14-year-old Brandi Levy was suspended from her school’s cheerleading team for a year after coaches saw screenshots of her post on the app Snapchat: a photo in which she had her middle finger raised, with the caption “fuck school fuck softball fuck cheer fuck everything.” Levy argues that the suspension violated the First Amendment; the question now before the court is whether the court’s 1969 ruling in Tinker v. Des Moines Independent Community School District, holding that public school officials can regulate speech that would substantially disrupt the school’s work, also applies to student speech that occurs off campus.
PennEast Pipeline Co. v. New Jersey (argued Apr. 28, 2021) arises from PennEast’s efforts to build – over New Jersey’s objection – a 116-mile natural-gas pipeline through Pennsylvania and New Jersey. The legal question in the case centers on the effect of the federal Natural Gas Act on states’ sovereign immunity. When New Jersey opposed the pipeline, PennEast attempted to use eminent domain to obtain land (some of it belonging to New Jersey) for the pipeline; New Jersey countered that it was shielded from lawsuits in federal court by the 11th Amendment.
The court has released six decisions, written by five different justices, from that session (including Terry v. United States, argued in May) – Kavanaugh, Kagan, Sotomayor, Alito and Thomas (who has written twice). With six more decisions to come, some of those justices could be writing again, making it hard to make any predictions at this point.
Looking at the term as a whole, Thomas is almost certainly finished with his opinions for the term: He has written a total of seven, with at least one in every month but February, which had only six arguments. Breyer, Sotomayor, Gorsuch and Kavanaugh all have five opinions each. Just six days ago, Roberts had released only two opinions, but he has since doubled that output to four – tied with Kagan and Barrett, who did not join the court until after its October sitting. Alito brings up the rear with just three opinions so far – two from the court’s October sitting and one from its April calendar, but nothing in between.