The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Supreme Court

The New Roberts Court Releases Its First Opinions in Argued Cases

The Supreme Court issued several opinions this morning, displaying a great deal of unanimty.


The late Justice Ruth Bader Ginsburg was known to be a fast opinion writer. Indeed, she was often the first justice to issue an opinion in an argued case each term (even if Justice Thomas beat her to the punch last year). This year, without the Notorious RBG on the bench, there was some question about who would write the first opinion. This year, four of her colleagues shared the distinction of getting out the first opinion. As is often the case with opinions released early in a Supreme Court term, each of these opinions was unanimous. Each was also quite short.

The first decision released was Rutledge v. Pharmaceutical Care Management Association, rejecting the claim by pharmacy benefit managers that an Arkansas law governing prescription drug reimbursemednt rates was preempted by ERISA. Justice Sotomayor wrote for an 8-0 court. Justice Thomas wrote a separate concurrence, as he often does in preemption cases, to express disagreement with the Court's preemption jurisprudence. As he has noted before, Justice Thomas believes the Court's Court's ERISA preemption jurisprudence, in particular, is divorced from the relevant statutory text.

Next to be released was United States v. Briggs, in which the Court rejected the argument the the five-years statute of limitations for certain offenses under the Uniform Code of Military Justice applied to rape prosecutions. Justice Alito wrote for an 8-0 court. Justice Gorsuch wrote a separate concurrence to note that he does not believe the Court has jurisdiction to hear appeals directly from the Court of Appeals for the Armed Forces, but that (assuming jurisdiction) the Court was correct on the merits. Of note, the case was argued by Texas law professor Stephen Vladeck.

The third released opinion was Carney v. Adams, in which the Court rejected a constitutional challenge to Delaware laws limiting the number of judges on specific courts may belong to the same political party and excluding members of minor parties from some judicial seats. Justice Breyer wrote for an 8-0 Court concluding that the plaintiff here lacked Article III standing to sue, in part because he had not actually applied to be a judge (but even though he said he would were it not for the laws barring his service). It is somewhat surprising that this case was unanimous. It is perhaps even more surprising that an opinion rejecting standing was written by Justice Breyer, who is usually quite permissive on this issue. On the other hand, if you cannot convince Breyer you have standing, you really must not have it. Justice Sotomayor wrote a short concurrence raising issues the Court should consider if and when the underlying question in Carney  returns to the Court in a case in which the plaintiff actually has standing to sue.

The fourth and final released opinion of the day was also surprisingly quick and unanimous Tanzin v. Tanvir. In an 8-0 opinion written by Justice Thomas, the Court concluded that, in suits under the Religious Freedom Restoration Act (RFRA), a person who claims their religious exercise rights were infringed by a federal government official may seek money damages from such officials in their individual capacities. According to Justice Thomas, money damages are included in the "appropriate relief" authorized by the statute. I think the Court is correct here. It is notable that the Court was unanimous in this–and that the justices thought the case was so easy that it could be disposed of so quickly in a 8 1/2-page opinion–given how much of a political football RFRA has become.

A few additional notes. Each of these was decided by an eight-member Court, as each had been argued during the October sitting, before Justice Amy Coney Barrett had been confirmed to replace Justice Ginsburg. Also, it's worth noting that opinions are released in the reverse order of seniority—the junior-most justice first and the Chief Justice last. So the order in which opinions are released does not indicate which was finished "first." This year, that honor belongs to four justices equally.