Update on Predicting SCOTUS Assignments for the November Sitting

Justice Kagan wrote Borden. The Chief likely has the Obamacare case, and Justice Alito likely has Fulton.


On Sunday, I observed that there were three outstanding cases from the November sitting: Borden v. U.S., Fulton, and California v. Texas. And four Justices had not yet written a majority opinion: Chief Justice Roberts, and Justices Breyer, Alito, and Kagan.

I predicted that Justices Breyer or Kagan would write Borden, an ACCA case. Today, Justice Kagan wrote controlling opinion in Borden. The split in this case was fractured. Justice Kagan announced the judgment of the Court, and wrote an opinion joined by Justices Breyer, Sotomayor, and Gorsuch. Justice Thomas concurred in judgment. Here, I think that Justice Breyer would have assigned the opinion to Justice Kagan, since Justice Thomas only concurred in judgment. Justice Kavanaugh dissented, joined by Chief Justice Roberts, and Justices Alito and Barrett.

Now, we have two remaining cases from the November sitting: Fulton and California v. Texas. I am skeptical that Justice Breyer will write either case. Lord help us professors if he does. I adore SGB, but his constitutional law decisions are impossible to teach. (See, for example, Comstock and Noel Canning). Therefore, we are likely left with the Chief writing on Obamacare, and Justice Alito writing Fulton.

We only had one opinion announced today. Forget Blue June or Red June. So far we have Slow June. The end of the term is going to be a blitz.

NEXT: Reaching Equilibrium: How Do Criminal Law Conventions Develop?

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  1. his constitutional law decisions are impossible to teach

    Because they’re too intellectually demanding for the class ?

    Or because you struggle to identify how he landed here rather than there – like a scientific experiment that nobody else has managed to replicate ?

  2. For Fulton, we can pretty much assume that if Breyer writes the opinion, Philadelphia will win, while if Alito writes it, Fulton will. Why not say that you hope he doesn’t write the opinion because you hope Fulton wins?

    For California v. Texas, California is probably going to win whether Breyer or Roberts writes the opinion, although there might be differences in the reasoning and/or some of the details between the two. Indeed, it’s not clear if any of the Justices will find for Texas.

    1. “For Fulton, we can pretty much assume that if Breyer writes the opinion, Philadelphia will win, while if Alito writes it, Fulton will. Why not say that you hope he doesn’t write the opinion because you hope Fulton wins?”

      You have the causality backwards. One of the justices in the majority will be assigned to write the opinion.

      If Breyer is assigned to write Fulton, it’s because Philadelphia won, not the other way around.

      1. A party wins wins when the judgment is announced, not when the case is assigned. The voting and opinion writing of the judges causes a party to win, not the other way around.

        If you believe that winning occurs in some sort of ideal, objective platonic universe which then causes the justices to write their opinions, your view of causality would make sense. But if winning causes justices’ behavior and not the other way around, it becomes hard to explain how a new justice can result in the reversal of a previous majority opinion, an event that happens not infrequently.

        1. The outcome of the case is determined when the justices vote. Only after that is one of the justices assigned the task of writing the majority opinion.

    2. I doubt Breyer wrote it because I doubt Philadelphia won.

      And if Philadelphia won, Breyer would be the last pick to write … they need Roberts and one other conservative. Breyer could very easily alienate both.

      I can imagine Breyer writing in favor of Fulton … he was the principle dissent in Smith if I recall. And though both sides have switched opinions because of political reasons, idk, perhaps Breyer is more honest than that. I mean he wrote dissent after dissent calling for its overruling.

      I can imagine Fulton assigned to Breyer so that he ensures that Smith can be overruled, but properly so that the liberal interests in Smith and the conservative in Fulton are maintained. Well, one can hope, anyway.

      1. But mostly likely, yeah, Alito wrote in favor of Fulton.

  3. My prediction for the November sitting: The Chief will be in the middle.

    Mr. D.

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