And then there were 2


This final week of the Supreme Court's term is brought to you by the number 2.

First, I had expected the Court to hand down all of the remaining five cases in a single session. Wrong again. There would be 2 sessions: Tuesday, June 29, and Thursday, July 1. (I extend a very happy Canada Day to all my Canuck friends).

Second, today the Court handed down three fairly non-controversial cases today. And there are 2 remaining cases: Brnovich and Thomas More.

Third, the dynamic duo of Chief Justice Roberts and Justice Kavanaugh were in the majority of every case.  Johnson v. Guzman Chavez split (mostly) 6-3. Justice Alito wrote the majority opinion, which was joined in full by Chief Justice Roberts and Justices Kavanaugh and Barrett. Justice Thomas concurred with the majority, though disagreed on a jurisdictional issue; he was joined by Justice Gorsuch. Justices Breyer, Sotomayor, and Kagan were in dissent. PennEast Pipeline Co. v. New Jersey split 5-4. The Chief assigned himself this FERC case–perhaps some form of self-flagellation–and was joined by Justices Breyer, Alito, Sotomayor, and Kavanaugh. Justice Gorsuch dissented, joined by Justice Thomas. Justice Barrett wrote a separate dissent, which was joined by Justices Thomas, Kagan, and Gorsuch. Minerva Surgical, Inc. v. Hologic, Inc. split 5-4. Justice Kagan wrote the majority opinion, and was joined by the Chief Justice and Justices Breyer, Sotomayor, and Kavanaugh.

To paraphrase Rob Base and DJ EZ Rock, it takes 2 to make a case go left!

I'll have more to say about the other cases soon enough.

Until Thursday. Then there were 2.

NEXT: These Were Not the 5-4 SCOTUS Decisions You Were Looking For

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  1. “perhaps some form of self-flagellation”


  2. You know, I didn’t know there was something very “left” about ruling in favor of oil companies.

    I was also completely unaware of the communist philosophy of “assignor estoppel”

    jk obviously

    Yeah yeah its a stare decisis case except … not really? It seems that congress passed a law, the court made some atextual ruling, congress passed a different law which ignored that ruling, does the ruling apply? I thought the answer was obviously no, even under strict stare decisis, but hey I guess I’m wrong apparently?

    Like if I passed a law that said, idk, the fda has authority over all drugs and the court said dna is a drug and then congress went lol no, I dont think you can still say it is, even if congress didn’t say it explicitly. The whole point of stautatory stare decisis is that congress can overturn things when it wants! Otherwise the philosophy makes no sense.

    1. “You know, I didn’t know there was something very “left” about ruling in favor of oil companies. ”


      OTOH, there’s something pretty “Left” about saying “sure, States have sovereignty, and the Commerce Clause doesn’t let the Feds boss the States around.

      Except for eminent domain”

      IMAO, that’s why the split was so interesting in that case. Because it appears to be a “what do you hate more, pipelines or Federal eminent domain?” case.

  3. 5-4 cases, and 6-3 cases splitting on pure right-left lines, are “not controversial”?

    1. The splits in the 5-4 cases were interesting.

    2. Well, a simple question:

      Without looking, could you have told use last week what the issues were in “Johnson v. Guzman Chavez”? Was anyone discussing it?

      I would say “no” and “no”.

      The 5-4s were not Left-Right splits

  4. In Johnson, Justice Alito used the term “alien,” while the dissent used the term “noncitizen.”

    I had thought the Conservatives might be going along with the term “non-citizen” but then use the term “baby” in an abortion case. But this was not the case.

    The question that the plurality and concurrence solit on was whether the court had jurisdiction over the case.

    In a case like this, I would expect jurisdiction to be carefully discussed, with a separate part of the opinion explaining why the Court has jurisdiction that would be joined by the dissenters to form a majority. But that didn’t happen. The plurality asserted the court had jurisdiction in a brief footnote, footnote 4, that merely said the court has jurisdiction and cited a case without explaining it in any way. The concurrence objected to footnote 4

    That just seems very unusual. When the court issues a written opinion and an issue results in a disagreement among the justices, justices have an obligation to the public to explain their views on the issue they are disagreeing on. The plurality needed to give a reasoned explanation why it thought that its interpretation (here of the jurisdictional rules) was better than the dissent.

    Although there was oral argument and a full decision, this might as well have been a shadow docket case so far as one of the case’s key issues was concerned. That just shouldn’t be.

    1. “In a case like this, I would expect jurisdiction to be carefully discussed, with a separate part of the opinion explaining why the Court has jurisdiction that would be joined by the dissenters to form a majority.”

      You know, that’s a good point. Which leaves me to wonder if they didn’t do it BECAUSE they wanted to let “footnote 4” lose, so long as the case was decided correctly

  5. There were dissents to yesterdays per curiam decisions. How often does that happen.

    1. Quite often actually, relative to the small number of per curiams.

  6. The majority and Barrett agree that assignor estoppel is unavailable to Hologic, though not on why, so how come hers is not at least a concurrence in the judgment?

    1. Because that’s not what the majority decided:

      Minerva argued that estoppel should not apply because it was challenging a claim that was materially broader than the ones Truckai had assigned. The Federal Circuit declined to consider the alleged disparity, deeming “irrelevant” the question whether Hologic had expanded the assigned claims. But if Hologic’s new claim is materially broader than the ones Truckai assigned, then Truckai could not have warranted its validity in making the assignment. And without such a prior inconsistent rep- resentation, there is no basis for estoppel. The judgment of the Federal Circuit is therefore vacated, and the case is remanded for the Court of Appeals to address whether Hologic’s new claim is materially broader than the ones Truckai assigned

      So the case will go the the Federal Circuit, and then come back to SCOTUS where the whole thing gets done over again

      1. Thanks Greg, I read too quickly.

  7. My guess is Justice Alito writes Brnovich, which would give him 6 majority opinions for the Term, with Justice Barrett writing AFP Foundation. That’s only 5 majority opinions for Barrett, while the other Justices all have at least 6, but she didn’t participate in 10 cases that were argued before she was confirmed, as well as 2 decided without argument early in her tenure. Both Brnovich & AFP Foundation will get at least 7 Justices agreeing on the result.

    Or I could be wrong.

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