On Tuesday, the Supreme Court issued three more opinions in argued cases and announced that it would issue all of the remaining decisions (or, using its standard language for this announcement, “all remaining opinions ready”) on Thursday, July 1, at 10 a.m. Eastern.
As we approach Thursday, there are only two cases that have not yet been decided. The first dates back to the court’s February calendar (although it was argued on Mar. 2). In Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee, 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.
The second case (or, to be more precise, outstanding opinion, because there are two consolidated cases) comes from the court’s April calendar. 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.
As regular readers of this feature know, there is no way to know which justice is the author of a particular decision until it is released on the court’s website, but you can sometimes try to read the tea leaves. In particular, 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.
At this point in the term, most of the justices are likely finished with opinions. Justice Clarence Thomas is almost certainly done, with seven opinions for the term. Six of the nine justices – Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Brett Kavanaugh – are close behind Thomas with six opinions. That leaves Justice Samuel Alito, who has five opinions, and Justice Amy Coney Barrett, who did not join the court until after the October argument session and only has four opinions so far, as the most likely candidates to author the two remaining opinions.
Although it’s hard to make concrete predictions about the February argument calendar in particular with only six opinions in total expected, we know that four justices – Thomas, Breyer, Alito and Kavanaugh – have not written for February, and Alito trails those three colleagues in his output so far. We also know that for the April session, which is difficult to game for the opposite reason (it should ultimately yield 13 opinions), Barrett is now the only justice who has not written an opinion. Putting those two pieces of the puzzle together suggests that Alito is writing Brnovich and Barrett is writing Americans for Prosperity, but we will have to wait until Thursday to know for sure.