The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Blue Monday turns into Blue Week, and likely Blue June
Conservatives are 0-5 this week. A new #SCOTUS short list will not help.
I dubbed June 15, 2020 "Blue Monday." Conservatives went 0-4, losing on guns, immigration, the death penalty, and Title VII. I previously associated June 15 with Magna Carta day, an important day on the calendar for the rule of law. Now, another sentiment occupies that day.
Blue Monday has now turned into Blue Week, with a loss in the DACA case. Conservatives are 0-5. How did President Trump respond? With a promise for another Supreme Court list!
…Based on decisions being rendered now, this list is more important than ever before (Second Amendment, Right to Life, Religous Liberty, etc.) – VOTE 2020!
— Donald J. Trump (@realDonaldTrump) June 18, 2020
Those sorts of promises are no longer meaningful. And more importantly, they will no longer appeal to donors. I think the latter fact will quickly modify the former strategy.
Alas, I suspect that Blue Week will turn into Blue June. I previously made predictions for assignments. Let me update my predictions.
There were eight cases argued during the January sitting. Only one is outstanding: Espinoza. Chief Justice Roberts and Justice Breyer have not yet written for that sitting. I don't think either Justice is willing to write an opinion that declares Blaine Amendments unconstitutional nationwide. Certainly stare decisis on the Kagan Court requires standing by the longstanding Blaine Amendments. I view either assignment as a defeat for conservatives: either Roberts or Breyer writes a baby-splitting decision that leaves no one happy. I'm not sure what the middle-ground is here, but they'll think of something.
There were nine cases argued during the February sitting. Four are outstanding: Thuraissigiam, Seila Law, Liu, and June Medical. Roberts, Breyer, Alito, Sotomayor have not yet written.
Justice Sotomayor will write Liu v. SEC, an unremarkable criminal law case. And Roberts will assign Thuraissigiam to Justice Alito. I'm sure Roberts is content to narrow the scope of the Suspension Clause, especially in light of his Guantanamo decisions.
The Chief will assign Seila to Justice Breyer, who upholds the CFPB in its entirety. That agency is far too important to cripple before an election. Vice Presidential candidate Warren would love that sort of ruling to run on! And this decision avoids the need to clarify severability doctrine. Muddled doctrine is ideal in John Roberts's multiverse of madness. Meanwhile, here on Planet Earth, courts and lawyers suffer from this lack of clarity. Justice Kavanaugh dissents, and, as he did in the D.C. Circuit, rules that the Court can simply sever the for-cause removal provision. Gorsuch and Alito find that the for-cause provision is not severable and the entire agency is invalid. Justice Thomas argues that severability doctrine violates Article III, and the remedy should be limited to the Plaintiffs' injuries.
Finally, the Chief Justice will write June Medical. My prediction: he concludes the Fifth Circuit disregarded binding precedent in Whole Woman's Health. June will be blue.
If I am right, the only ostensible conservative victory would be Thuraissigiam, which frankly, no one outside the immigration bar will care about beyond.
I'll hold off on making predictions for the remaining 10 cases argued in May. We probably won't see any decisions for those cases in the next two weeks. Will there also be a Blue July? Probably.