Who will write the remaining major Supreme Court decisions?

My prediction: Roberts for Title VII, Roberts for DACA, and Roberts for Espinoza, and Roberts for Tax Return Cases

|The Volokh Conspiracy |

The Supreme Court generally gives each Justice roughly the same number of majority opinions. For example, in a given sitting (roughly a month), the Court may hear nine cases. Each Justice would be assigned one majority opinion. If there are more than nine cases in a sitting, invariably some Justices will get multiple assignments.

This practice allows us to use the process of elimination to guess who will write the majority opinion in outstanding cases. This guess work is often unreliable. In some cases, where a case flips–that is, a dissent becomes a majority opinion–a Justice will lose his or her assignment. But, speculate, we can.

In the October setting, nine cases were argued. Malvo, which involved juvenile life without parole, was dismissed from the docket. The Title VII cases–Bostock and Harris–will likely be consolidated with a single opinion. From that sitting, Justices Ginsburg, Kavanaugh, and Chief Justice Roberts have not yet written a majority opinion. One of those justices was likely assigned Malvo, but lost the case. I am skeptical the Chief would give the junior justice the Title VII cases. My prediction: Roberts writes both Bostock and Harris. And Kavanaugh lost Malvo.

In the October sitting, ten cases were argued. Only one case is outstanding, and one only Justice has not yet written a majority opinion. My prediction: Chief Justice Roberts will write the majority opinion in Regents, the DACA case.

In the November sitting, twelve cases were argued. NY Rifle & Pistol was decided per curiam. Roberts wrote twice from this sitting, so he is probably done. There are no more outstanding decisions from that session.

In the January sitting, eight cases were argued. Only Espinoza, the Montana religious school funding case, remains outstanding. Chief Justice Roberts and Justice Breyer have not written from that session. My prediction: Roberts writes the majority opinion. Though it is possible that Breyer, who split the difference in the Ten Commandments case, draws a majority.

Nine cases were argued in February. In theory, each Justices should get one decision. So far, Ginsburg, Gorsuch, and Kavanaugh wrote from that sitting. It is too early to predict the rest of the cases. But I'll predict that Roberts writes Seila Law.

Ten cases were argued in May. The faithless electors case will likely be consolidated in a single decision. (Though I think there are important distinctions between the cases). And the tax return cases will also be consolidated in a single decision. So there will only be eight majority opinions. One Justice will likely be left out. And we have two recusals, which helps us narrow it down. It is way too early to make any predictions. But I'll make some anyway.

  1. Roberts writes both tax-return cases, Mazars and Vance. Because of course he will.
  2. Thomas writes Barr v. American Association of Political Consultants–his NIFLA decisions suggests a very pro-Free Speech view in the corporate realm. I am also keen to see how he approaches severability, in light of Murphy.
  3. Ginsburg writes Booking.com, because she likes IP cases. And she can rule for her former clerk, Lisa Blatt, who argued it.
  4. Breyer writes both faithless electors case, because he likes Democracy cases. (Sotomayor is recused in the Colorado case).
  5. Alito writes the follow-up Little Sisters of the Poor case. (The original is always better than the sequel.)
  6. Sotomayor writes Open Society. (Kagan is recused).
  7. Gorsuch writes McGirt. The Court's only Westerner likes Indian law.
  8. Kavanaugh writes Guadalupe. He had a strong concurrence last year in the cross case.
  9. Kagan is left without a majority opinion.

These predictions are worth what you paid for them. It is going to be a long June. And maybe July.

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  1. I suppose the law clerks will write the opinions, livening it up here and there with zingers suggested by their bosses.

    The clerks prepare the dish, the justices add some seasoning.

  2. “The Supreme Court generally gives each Justice roughly the same number of majority opinions. For example, in a given sitting (roughly a month), the Court may hear nine cases. Each Justice would be assigned one majority opinion. If there are more than nine cases in a sitting, invariably some Justices will get multiple assignments.”

    I would think that writing the majority opinion in any given case would have to go to a justice voting for the majority.

    Your opening paragraph would seem to necessarily imply that there are cases where justices voting with the dissent are writing the majority opinion.

    1. As I understand it, the Chief Justice/senior justice in the majority generally takes that into account when assigning opinions. In other words, if (say) Sotomayor were only in the majority in two cases, she’d be likely to get assigned the opinion. (Obviously, predicting authors in this way gives you some ability to predict the outcome of the case as well, to the extent you’ve guessed the author correctly.)

      1. The problem is what happens if in a given time period there are more cases than justices and one justice was not in the majority on any case?

        Either the first paragraph of the article must be wrong or in the scenario I laid out a justice is assigned to author a majority opinion in a case where they were in the dissent.

  3. Breyer to write Booking.com, perhaps. He had some good pages on policy implications during the argument. At least a major concurrence.

    Mr. D.

  4. I feel like Josh is letting his own personal political leanins color his view on Robert’s.

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