The Court’s release of six (!) opinions on Monday kept us busy, and it also gave us a better idea of which Justices might – the key word here is “might” – be writing which of the remaining opinions, at least through the Court’s January sitting. This is because the Justices make a very strong effort to divide up the workload in drafting majority opinions evenly – not just for the whole Term, but also within each month’s sitting.
There are only two cases outstanding from the nine cases comprising the Court’s November sitting: Foster v. Chatman, a death penalty case alleging a violation of Batson v. Kentucky; and the “crimmigration” case Torres v. Lynch. Only two Justices, Chief Justice John Roberts and Justice Elena Kagan, have yet to write for the November sitting. That combination probably leaves lawyers for inmate Timothy Foster more than a little nervous: if Kagan is writing in his case, it could go very well for him, but they have to be less optimistic if Roberts is writing.
There are three cases still outstanding from the Court’s ten December cases: Green v. Brennan, in which the Court is considering when the filing period for a constructive discharge claim starts to run; Dollar General v. Mississippi Band of Choctaw Indians, involving the jurisdiction of Indian tribal courts; and Fisher v. University of Texas at Austin, the affirmative action case on its second go-round at the Court. Only two Justices – Roberts and Justice Sonia Sotomayor – have yet to write for December. Justice Antonin Scalia had also not yet written for December when he died in February. This means that Roberts and Sotomayor will each write at least one of those three remaining opinions. But that leaves one more decision to write. Justice Stephen Breyer won’t be the author of the remaining opinion, because he has already written two opinions from December. But any of the other Justices, including Sotomayor and Roberts, could pick it up. And as an aside, who would have thought that we would get unanimous rulings in what had seemed to be two major voting rights decisions, Harris v. Arizona Independent Redistricting Commission and Evenwel v. Abbott, well before the decision in Green?
Finally, January. We are waiting on only one decision, in Puerto Rico v. Sanchez Valle. There were nine cases in January. One of those nine – Duncan v. Owens – was dismissed as improvidently granted, while a second case, Friedrichs v. California Teachers Association, was summarily affirmed after the Court deadlocked four to four. That leaves seven cases, and two of the current Justices – Kagan and Justice Samuel Alito – have not yet written. (Scalia had also not written for January.) It seems likely that Alito would have been the author of the decision in Friedrichs, in which the Court was considering the constitutionality of the “agency fee” charged to public employees who are represented by a union to which they do not belong; he was the author of a 2014 decision which strongly suggested that such fees are unconstitutional. If that’s true, then it would suggest that Kagan is writing in Sanchez Valle, in which the Court is considering whether Puerto Rico and the United States are separate sovereigns for purposes of the Double Jeopardy Clause.
The Court has only decided three cases from its February sitting, and it has done the same for March, making the tea leaves a little too murky to read right now. And the possibilities are wide open for the April sitting, because none of those cases have been decided yet. It’s unlikely that the April picture will become clearer today, but we could know more about February and March by the end of this week or the beginning of the next.
[Disclosure: My husband, Tom Goldstein, is among the counsel to Dollar General.]
