On Friday, the Supreme Court issued three more opinions in argued cases, resolving cases on topics ranging from the right to sue for violations of consumer-protection laws to eligibility of Alaska Natives for COVID aid. As we come down to the last few days of June, the court still has five 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.
Five justices have not yet written an opinion for January: Roberts, Alito, Sotomayor, Kagan and Barrett. But with six opinions already for the term, Sotomayor is probably finished. Roberts, who has five opinions, also has not yet written for April. Kagan also only has five opinions so far, which raises the possibility that she could be writing Guzman Chavez or have another opinion coming for April; another possibility would be that Barrett has Guzman Chavez and one of the three remaining April opinions.
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 with any real precision. Thomas, Breyer, Alito and Kavanaugh have not yet written for February, but Thomas – as I note below – is likely finished for the term. It seems possible that Breyer and Kavanaugh are also done with six opinions each; if so, that would mean that Alito was writing in Brnovich, but we’ll ultimately have to wait and see.
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.
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.
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 now released all but three decisions from the April argument session (including Terry v. United States, argued in May). Seven justices have already written for April – Thomas (who has written twice), Breyer, Alito, Sotomayor (who has also written twice), Kagan and Kavanaugh. With five more decisions to come and two justices (Roberts and Barrett) who haven’t written yet, one of those justices could be writing again. But it wouldn’t be surprising, given the case’s high profile, to see Roberts take Americans for Prosperity, leaving either Minerva or PennEast for Barrett, the court’s most junior justice.
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. Four justices – Breyer, Sotomayor, Gorsuch and Kavanaugh – now have six opinions. Roberts now has five opinions, tied with Kagan.
Alito and Barrett have four opinions each. Alito did not write in November, and he has not yet written for January, February or March, so he will need to pick up opinions somewhere; Barrett, who did not join the court until after its October sitting, has not yet written for January or April.