87. And Then There Were Six(ish)

With more decisions coming today at 10 ET, a quick preview of the remaining 6–8 Supreme Court decisions, with some speculation about which justice was assigned the majority opinion in each case

Thank you for your continuing support of “One First”—my weekly newsletter that aims to make the Supreme Court more accessible to all. I thought I’d add an extra (free) Friday issue this week for the sole purpose of getting folks ready for the opinion hand-downs that we expect starting (but not finishing) at 10:00 ET this morning. If you find this newsletter at all useful, or just enjoy getting e-mails, I hope you’ll consider subscribing if you don’t already:

We learned a bunch of stuff from yesterday’s formal session of the Court, including that today will not be the last day for rulings from the bench (we know this because the Chief Justice didn’t say that it would be). And shortly thereafter, we learned that the Court is planning to hand down additional rulings at least next Monday, July 1. It’s entirely possible that Monday will be the last day, but we won’t know that until the end of today’s session (when, again, the Chief Justice will either say that it is, or he won’t). That means that we’re getting some subset of these remaining rulings today, but (1) definitely not all of them; and (2) quite possibly not the most significant of them (i.e., the Trump immunity case):

There are two pairs of cases remaining in which the Court could hand down either a single opinion or two each: The two cases about the future of “Chevron deference,” and the two cases about Florida’s and Texas’s laws slightly different laws regulating content moderation by social media companies (the “NetChoice cases”). If both pairs are resolved in single rulings, there are six decisions to go. If neither is, there are eight decisions to go. And given what else has been decided, we can also make some somewhat-informed guesses about who was at least initially assigned the majority opinion in each of the remaining cases, on the well-proven hypothesis that the Chief Justice (who, I suspect, is in the majority in each of the remaining cases) tends to evenly distribute opinion assignments. A justice can lose a majority opinion (as it appears Alito did in the Gonzalez case), but we can’t ever predict that in advance. So here’s a snapshot of what’s left:

1. Chevron

The only cases left from the January argument sitting are the two cases about the future of Chevron (whether courts should defer to agencies’ reasonable interpretations of ambiguous statutes). There are two cases only because Justice Jackson is recused in one of them, but that didn’t stop the Court from handing down a single opinion last term in the affirmative action cases. I suspect the same is coming here. Every justice has handed down a majority opinion from January except the Chief Justice and Justice Kavanaugh. It’s entirely possible that the Chief kept these for himself, but it’s just as possible that, knowing he’d probably take the assignment in the off-cycle Colorado ballot disqualification case (which was argued on February 8), he assigned them to Kavanaugh (or there are two and they each took one). Neither would be surprising, but I’m leaning toward a single opinion by Kavanaugh.

2. Corner Post

I’ve long thought that this case is more significant than media coverage might have led folks to believe, and the fact that it still hasn’t been decided suggests the justices might agree. The basic issue is whether agency regulations have to be challenged within some fixed time after they are adopted, or just within a fixed time after they cause harm. The latter interpretation, of course, would mean agency rules could be challenged almost in perpetuity. This case was argued in February. And, again, if we assume that the Chief Justice took the Colorado ballot case (where the final majority opinion was unsigned), the only justices without majority opinions from that month are Alito and Barrett. (It’s also possible that the Chief has this, and Alito and Barrett are splitting the NetChoice cases.) My money, which ain’t worth much, is on Alito here.

3. The NetChoice Cases

One of the more common predictions among those making them is that Justice Barrett has at least the lead opinion in the two social media/content moderation cases, if not a single opinion consolidating both of them. Given that she hasn’t written a majority opinion from February, and that it would be odd for Alito to have the assignment here (since his views on the relationship between social media and the First Amendment are … at one end of the Court), that seems deeply plausible. It’s also possible that the Court issues an opinion in one of these cases, and something narrower in the second that is unsigned (“per curiam”). Either way, one of the two predictions in which I’m actually confident is that Barrett has an opinion in NetChoice, if not a single opinion resolving both cases.

4. Fischer

Things get complicated when we get to April, because three of the remaining cases are from the Court’s last sitting. (This isn’t unusual, but it also reinforces a point I’ve made before—about how the Court should consider abandoning its April calendar so it isn’t squeezing such high-profile cases into such a short time-span.) Taking them in the order in which they were argued, the first is Fischer—the January 6 obstruction case. This is going to sound wild, but it’s at least possible that Justice Jackson has the majority opinion here—and, given her skeptical questioning of the federal government at oral argument, that’s not necessarily a good thing for the Justice Department. It’s also entirely possible that the Court’s junior justice didn’t get any assignment in April, but that would mean that someone got two, a split that would also be very unusual. And as odd as it is to think that Jackson has (or, at least, initially had) Fischer, it makes more sense that she would’ve received this assignment than the assignment in the other two remaining cases.

5. Grants Pass

The case about whether cities can ban camping by those who are homeless is almost certainly heading for a reversal (or, at least, vacatur) of the Ninth Circuit decision (holding that they can’t), although it’s easy to imagine the justices being all over the place as to why. Besides Justice Jackson, the only justices who haven’t yet released majority opinions from April are the Chief Justice (more on him shortly) and Justice Gorsuch. Gorsuch could easily have Fischer, but my bet is that Grants Pass is more likely. Make of that what you will.

6. Trump

Finally, the only prediction in which I am very confident is that Chief Justice Roberts kept the majority opinion in the Trump immunity case for himself—whether it comes down in his name or “per curiam.” The Chief wrote both of the big Trump cases in OT2019. And it’s a pretty well-entrenched position that opinions in such high-profile, politically significant cases come either without an author or in the name of the Court’s senior-most justice.

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As for what’s coming today versus what’s coming Monday or beyond, the best I can say is ¯\_(ツ)_/¯. It wouldn’t surprise me at all if the Chevron cases and Corner Post came down together today, perhaps with NetChoice, and then Grants Pass, Fischer, and Trump on Monday. But we only got two rulings on Wednesday, and so it’s still entirely possible that there are three days to go, not two. Either way, because the justices announce decisions in reverse order of seniority, it’s possible that we hear first from Jackson (best bet: Fischer) or Barrett (best bet: NetChoice) or Kavanaugh (best bet: Chevron).

All of this could be wrong, of course. All we can say for sure is that we’ll know a lot more in a few hours.

Monday’s regular edition of the newsletter will take a longer look at what the Court did this week and what’s left for next week. But given the significance of what’s left, I thought it would be helpful to provide a bit of extra coverage heading into today’s (non-streamed, ugh!) session. If you enjoyed it, please consider sharing it with your friends, your frenemies, or any Yankees fans you happen to know.

Happy Friday, all!