On Wednesday, the Supreme Court issued four more opinions in argued cases, resolving cases on topics ranging from student speech and the Fourth Amendment to the separation of powers and property rights. As we come down to the last few days of June, the court still has eight more opinions to go, on topics ranging from voting rights to whether states can require nonprofits to disclose the names of their major donors.
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 Justice Samuel 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.)
After Wednesday’s release of the court’s decision in Collins v. Yellen, there are no longer any decisions from the fall 2020 calendars remaining. The oldest case is now from January, which was a light month for the justices with only five arguments in total: Johnson v. Guzman Chavez (argued Jan. 11, 2021), involves 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 is also only one opinion remaining from the court’s February calendar. 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 and Kagan have all already written for February, as have Justices Neil Gorsuch and Amy Coney Barrett, so they are unlikely to write again. That leaves Breyer, Alito and Justice Brett Kavanaugh as possible authors for Brnovich. (Justice Clarence Thomas has also not written an opinion from February, but – as I note below – he is likely finished for the term.)
There is also only one opinion left from the March calendar: TransUnion LLC v. Ramirez (argued Mar. 30, 2021), in which 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 five justices who have already written in March – Roberts, Thomas, Breyer, Gorsuch and Barrett – as authors of TransUnion. 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.
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 seven decisions, written by six different justices, from that session (including Terry v. United States, argued in May) – Thomas (who has written twice), Breyer, Alito, Sotomayor, Kagan and Kavanaugh. With five more decisions to come and three justices (Roberts, Gorsuch and Barrett) who haven’t written yet, 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.
If Breyer isn’t finished with six opinions, he is very close: Although he did not have an opinion in December, from which all of the opinions have now been released, he has had at least one in every other month except February.
As of last week, Roberts had released only two opinions, but he has now brought that output up to five, and he is missing opinions only from January (which featured just five arguments) and April. Four other justices have five opinions each: Sotomayor and Kagan (both of whom have not yet written for the January and March calendars), Gorsuch (who did not write in December and has not yet written for April) and Kavanaugh (who has not yet written for February or March).
Alito and Barrett have four opinions each. Alito did not write in November, and he has not yet written for January, February or March; Barrett, who did not join the court until after its October sitting, has not yet written for January or April.
