Bonus 83: 29 Down, 29(ish) To Go...

Later today, the Court will pass the halfway mark for rulings in cases argued during OT2023. Here's an in-depth look at what's left, along with some speculation about who might be writing

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

Given that the Court is set to hand down 3-4 more decisions in argued cases starting at 10 a.m. ET today, I thought it would be useful to use this week’s bonus issue to bring folks up to date with respect to the cases that the Court has left to decide (presumably between now and three weeks from tomorrow, the most likely last day of the term), and what (if any) tea leaves we can discern from what’s been decided to date.

I’ve written before about how far behind the Court is in getting its rulings out (TL;DR: it’s really unusual to have fully half of the argued cases still undecided entering June), and why that’s really not a good thing no matter how the remaining cases—a disproportionate percentage of which are likely to be blockbusters—come down. I won’t rehash those arguments here. But no matter what the Court hands down later today, because we don’t expect any rulings tomorrow, that means we’re heading into the last three weeks of June with an unprecedented number (and percentage) of momentous rulings, in yellow highlight below, still to come.

For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.

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I. How Much is Left…

Let’s start with the math. Although the chart lists 35 remaining cases, that’s misleading in both directions. It’s missing the “Good Neighbor” ozone pollution emergency applications, which were argued in February (and somehow still not decided), even though they’re not technically “merits” cases. So chances are, one of the decisions we get one of these days will be in those disputes. And it’s overcounting the consolidated cases. The chart reflects (in orange highlight) four pairs of cases that were already consolidated for briefing and oral argument, each of which should yield one decision, not two. That gets us to 32 decisions to go, unless the Court issues a consolidated ruling in the NetChoice cases and/or the Chevron cases (Relentless and Loper Bright), which could get us down to 30.

Regardless, with 29 rulings so far in argued cases (one of which consolidated two cases), whatever the Court hands down today is likely to take it over the halfway mark for OT2023. I can’t remember a term when the Court didn’t pass the halfway mark until this late. Even during the COVID Term (OT2019, when the Court basically shut down for a month, held oral arguments in May, and everything got pushed back), the justices still got the median decision out on April 27. One of these days, someone more important than me is going to start worrying about how this unnecessary and self-imposed end-of-June compression is bad for all involved in lots of different ways. Until then, well, there’s always my prior thoughts on the matter.

II. What’s Left…

Instead of beating my dead horse about how this is no way to run a railroad, I thought I’d use today’s bonus issue to look a bit more holistically at what’s left—especially when we look at the outstanding cases from each of the Court’s argument sessions. As veteran Court watchers will tell you, it’s often possible to take at least an educated guess as to which justice received at least the initial assignment of a majority opinion once we have enough other intel from that sitting, if for no other reason than because the Chief Justice tends to distribute assignments evenly (so, if nine cases are argued during a sitting, it’s likely that each justice receives one assignment). So here’s a month-by-month breakdown of what’s outstanding (and what’s been decided):

October 2023:

Nothing is left. All six of the cases argued during that session have been decided. Chief Justice Roberts, Justice Gorsuch, and Justice Jackson were the three justices without an assignment from October.

November 2023:

The two remaining cases argued in the “November” sitting (which began in October) are Vidal v. Elster (the “Trump too small” trademark case); and Rahimi (the Second Amendment/domestic violence case). There were seven cases argued in November; of the five already decided, four were written by Justices Gorsuch, Kavanaugh, Barrett, and Jackson, and the fifth was an unsigned “per curiam” opinion. That takes care of Gorsuch’s and Jackson’s missing October assignments, but it leaves the Chief Justice as the very likely initial recipient of the assignment in either Vidal or Rahimi—and my money is on the latter. Also, Vidal and Rahimi are, at this point, the longest outstanding decisions—so it wouldn’t be at all surprising if one or both came down later this morning.

December 2023:

Three cases remain from the “December” sitting—all of which are potentially significant (and also, alongside Vidal and Rahimi, “ripe” for showing up soon). There’s Jarkesy (a constitutional challenge to the SEC’s power to conduct civil enforcement proceedings); Purdue Pharma (the Sackler/opioid bankruptcy settlement case); and Moore (the potentially major tax case). So far, the only authors of opinions from December are Justices Alito, Sotomayor, and Jackson. That could well mean that Justice Gorsuch or the Chief Justice has Jarkesy (a bad sign for the SEC); whereas I wouldn’t be surprised if Justice Kagan has one of the other cases. Purdue Pharma could be anyone’s; maybe the Chief Justice if Justice Gorsuch has Jarkesy, but that’s just me spitballing.

January 2024:

January is when we start having too many cases left to make even well-educated guesses. The four opinions so far have come from Justices Thomas, Sotomayor, Gorsuch, and Barrett. There are either four or five left, depending upon whether we’re getting one opinion or two in the Chevron cases. The others—a pair of consolidated, technical immigration cases; a bankruptcy case; and a criminal case from Arizona—don’t have obvious authors. If the Chief Justice didn’t write Jarkesy, then it wouldn’t surprise me if he kept one/both of the Chevron cases for himself.

February 2024:

Not counting the Colorado ballot disqualification case (which was argued in February, but not as part of the February argument session), the Court has handed down five decisions so far and has four to go. The authors of the first five were the Chief Justice and Justices Sotomayor, Kagan, Kavanaugh, and Jackson. In other words, the three Democratic appointees have all already written. That leaves Justices Thomas, Alito, Gorsuch, and Barrett for the two NetChoice cases (the extent to which states can regulate content moderation by social media companies); Corner Post; and Cargill (two quietly important administrative law cases). Your guess is as good as mine as to how those break out (especially NetChoice, depending upon whether it’s one opinion or two). But at the very least, that lineup probably doesn’t augur well for the federal government in the latter pair.

March 2024:

Handicapping March and April are probably still a fool’s errand. Only two of the 11 March cases (including two pairs of consolidates cases) have come down; one by Justice Sotomayor and one by Justice Kagan. But given that there are nine left, it’s entirely possible that either/both of those justices have a second opinion from that sitting. The only March blockbusters are Murthy v. Missouri (the social media jawboning case) and the mifepristone cases, both of which are still, in my view, likely to result in reversals of the Fifth Circuit on the ground that the plaintiffs lack standing. As for who’s writing them, well, I wouldn’t be shocked if Justice Barrett or the Chief Justice had at least one of those opinions.

April 2024:

Like March, we have only two decisions so far from cases argued in April, one by Justice Alito and one by Justice Jackson. That leaves eight to go, including a consolidated opinion in the two EMTALA/emergency abortion cases; the Fischer January 6 obstruction case; and, of course, the Trump immunity case. If he’s in the majority, I’d be really surprised if Chief Justice Roberts didn’t assign the Trump case to himself. Beyond that, well, the number of permutations gets big in a hurry.

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Obviously, with each set of opinion hand-downs, we’ll get a little more information—so that these predictions will become sharper as we get closer to the end of June. But it says quite a lot that it’s June 6 (Happy birthday, Uncle David) with so much still to be decided—and very little of what it says is good for the health of the Court in the short or long term.