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Predicting SCOTUS Assignments for the November Sitting
Who will write Fulton and the Obamacare case?
During the November sitting, the Supreme Court heard arguments in eight cases. So far, five of them have been decided. Through the process of elimination, we can speculate about who can author the remaining three cases.
Here are the cases already decided:
- U.S. Fish and Wildlife Service v. Sierra Club, No. 19-547 [Arg: 11.02.20 Trans./Aud.; Decided 3.4.2021]—Barrett
- Salinas v. U.S. Railroad Retirement Board, No. 19-199 [Arg: 11.02.20 Trans./Aud.; Decided 2.3.2021]—Sotomayor
- Jones v. Mississippi, No. 18-1259 [Arg: 11.03.20 Trans./Aud.; Decided 4.22.2021] – Kavanaugh
- Niz-Chavez v. Garland, No. 19-863 [Arg: 11.09.20 Trans./Aud.; Decided 4.29.2021] – Gorsuch
- Brownback v. King, No. 19-546 [Arg: 11.09.20 Trans./Aud.; Decided 2.25.2021] – Thomas
Here are the remaining undecided cases:
- Borden v. U.S., No. 19-5410 [Arg: 11.03.20 Trans./Aud.]
- Fulton v. City of Philadelphia, Pennsylvania, No. 19-123 [Arg: 11.04.20 Trans./Aud.]
- California v. Texas, No. 19-840 [Arg: 11.10.20 Trans./Aud.]
Four Justices have not yet written an opinion for that sitting: Chief Justice Roberts, and Justices Breyer, Alito, and Kagan.
My rank speculation. The Chief assigned himself the Obamacare case–he would have it no other way. If the Chief ultimately does not write the majority opinion, he probably lost it. Justice Alito has Fulton. And Justice Breyer or Kagan has Borden, yet another ACCA case.
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So long as Alito got Fulton and neither Breyer nor Kagan got ObamaCare, life is good
So if Robert – Breyer – Kagan – Sotomayor – Gorsuch / Kavanaugh decide Obamacare, and Roberts writes the majority, life is good? I think not.
Alito writing Fulton is bigger than the ObamaCare case
The fact that California v Texas has taken so long makes me assume that there are going to be a hodgepodge of opinions- maybe a majority and a few concurrences and a dissent or two, maybe a plurality opinion where the law survives but the reasoning differ…and it may be one of those cases where things have moved from one to the other (maybe they wanted to dismiss on standing but then enough people decided to make a point about severability, or vice versa)
Different prediction: Kagan writes Fulton.
Of course Roberts should get the Obamacare case, he made such a mess of NFIB that he should have to clean it up.
He needs to at a minimum clarify that NFIB struck down federal mandates on individuals. Leaving it like it is where it’s unclear whether NFIB avoided striking down the mandate by construing it as a tax, or struck down the mandate then saved the statute by saying it was a tax not a fine isn’t acceptable.
Roberts predilection for keeping holdings as narrow as possible may not be a bad idea sometimes, but often creates mischief down the road.