With the cherry blossoms (sort of) getting ready to bloom, and the Supreme Court slated to issue opinions tomorrow, it’s time for another non-botanical pastime in Washington and beyond: Reading the tea leaves to try to predict which justices might be writing the remaining opinions on the court’s merits docket. Unfortunately, it’s too early to draw any firm conclusions about opinions for the first few months of the term, because three of the first four months of the term still have too many opinions left. The fourth month (November) has only one opinion left, but there were only six cases argued that month, so the author could be one of several justices.
For those of you who are new here, here’s how it works. The justices try very hard to distribute 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 there are 9 cases in a sitting (the two-week period in which the justices hear oral arguments) and eight justices have already written opinions for that sitting, the ninth justice is almost certainly writing the remaining opinion. This is, of course, mostly a meaningless exercise once the opinions are actually released, because then we know for sure who has written what, but occasionally it does shed some light on the decision-making process – for example, if there are nine cases in a sitting but one justice never writes an opinion for that month, it’s possible that the non-writing justice may have been assigned the opinion but lost the majority.
Let’s start with October, which had nine cases. There are four that have not yet been decided: The arbitration cases that are collectively known as Epic Systems v. Lewis, the immigration case Sessions v. Dimaya, the partisan gerrymandering case Gill v. Whitford and the Alien Tort Statute case Jesner v. Arab Bank. Chief Justice John Roberts has not yet written for October, nor have Justices Anthony Kennedy, Elena Kagan or Neil Gorsuch. It’s easy to imagine a scenario in which Roberts has Epic Systems (which would bode well for the employers in the case) and Kennedy has Gill, with Kagan and Gorsuch taking Dimaya and Jesner. The justices will hear oral arguments in another partisan gerrymandering case on Wednesday, so we may not get an opinion in Gill for a while, but a Kennedy opinion would be a good sign for the challengers.
November had only six cases, and all but one (the habeas case Wilson v. Sellers) has been decided. This means that, although five justices have already written opinions for November, it’s next to impossible at this point to predict which of the remaining justices – Roberts, Kennedy, and Gorsuch, along with Justice Stephen Breyer – will write in Wilson. Anyone but Breyer, however, could be bad news for the inmate in the case.
There were 10 cases in December, 5 of which have already been decided. The remaining five cases are all big ones: the patent cases Oil States Energy Services v. Greene’s Energy Group and SAS Institute v. Matal, the cellphone records case Carpenter v. United States, the sports-betting case Murphy (formerly Christie) v. NCAA and Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case of the baker who refused to make a custom wedding cake for a same-sex couple. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Kagan and Gorsuch have all written already for December, so we know that Roberts, Kennedy, Thomas and Alito will be writing at least four of these remaining five cases, but a justice will also have to double up in December, making it hard to predict who will write which decision.
There were nine cases in January, and eight cases are left; only Gorsuch has written so far, so all bets are off for the remaining cases.