The Supreme Court issued four opinions in merits cases today, bringing the number of remaining decisions down to 10. Interestingly, all four of today’s decisions came from the court’s April sitting, which narrows the field of remaining authors (including for Trump v. Hawaii, the travel ban challenge) considerably.
Monday’s ruling in Gill v. Whitford, the Wisconsin partisan-gerrymandering case, finally closed out the book on the October sitting. The November sitting was already finished (and has been for some time); I still think that Chief Justice John Roberts, who has not yet written for the December sitting, is writing the court’s decision in Carpenter v. United States, the cellphone-records case. And we don’t know anything more about January that we didn’t know going into today: Justices Stephen Breyer and Elena Kagan are almost certainly writing the court’s opinions in Florida v. Georgia (water wars) and Dalmazzi v. United States (dual-officeholding ban).
February is where it starts to get interesting, but also a little bit complicated. We’re able to make predictions about who might be writing in a particular month – Roberts writing Carpenter, for example – because the justices try to spread the workload out in each individual sitting. But they also try to spread the workload out evenly over the course of the term. In the February sitting, there are three cases remaining: Currier v. Virginia (effect of consenting to separate trials), Janus v. AFSCME (union fees 3.0) and Ohio v. AmEx (antitrust case on credit-card steering rules). There were two unsigned opinions in February, though, so there are five potential authors for February: Justices Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito, Kagan and Neil Gorsuch. But we can make some educated guesses about who might be writing based on the number of opinions that each justice has so far and what other opinions they might be writing.
Thomas only has four majority opinions so far, but we know he’ll likely pick up another one in April, where there are only three opinions remaining and three justices who have not yet written, including him. Thomas is also likely to be writing in March, where there is only one remaining decision outstanding: NIFLA v. Becerra, the abortion-speech case. It’s true that Breyer and Sotomayor have also not yet written in March, when there were only eight cases. But we know that Breyer is likely to pick up another opinion in January (see above), which would bring him to seven opinions for the term. Sotomayor is already at seven, so she is probably done for the term. That leaves Thomas: If he writes NIFLA and an April opinion, he would have six altogether.
Returning to February, Alito has only five opinions so far, although like Thomas we expect him to pick up another one in April. If (as many people expect) Alito writes in Janus, because he wrote for the court in an earlier opinion that considered – but did not decide – the union fees issue, that would mean that the other two decisions could come from Thomas, Ginsburg, Kagan or Gorsuch.
Coming back to April, there are three cases – WesternGeco v. ION Geophysical (patent infringement damages), Abbott v. Perez (racial gerrymandering) and Trump v. Hawaii. Three justices – Roberts, Thomas and Alito – have not yet written, so we can assume that they are each taking one case. (Roberts currently only has four opinions, and we expect him to add a fifth with Carpenter, so if he wrote one from April he would finish with six. I have seen speculation that Roberts could be writing two decisions from April, which is of course a possibility but would be a departure from their normal practice, since it would leave either Thomas or Alito without an April decision.) If I had to guess, I would predict that Roberts would be writing in Trump; it’s harder to game who might be writing in Abbott but either way Texas has reason to be optimistic.
All of this is of course speculation, and we’ll find out a lot more about who is actually writing tomorrow, starting at 10 a.m.
