The Volokh Conspiracy

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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.