The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The announcement that the Supreme Court will issue one or more opinions tomorrow has fueled speculation that we may get a decision in one or both of the S.B.8 cases. The Court heard Whole Woman's Health v. Jackson and United States v. Texas on an expedited basis, so perhaps this speculation is well-founded. The Court accelerated its consideration in Ramirez v. Collier, a death penalty case, as well. So that's another possibility.
One factor fueling the speculation that the Court will decide one or both S.B.8 cases tomorrow is that, in recent years, the Court has rarely issued opinions in argued cases in November, and most of those were authored by Justice Ruth Bader Ginsburg.
Here's a rundown of recent October and November Supreme Court decisions,
OT2021—Two per curiam opinions issued in October, neither in an argued case. We'll see what November brings.
OT2020—Three per curiam opinions issued in November, none in an argued case.
OT2019—One per curiam opinion issued in November, not in an argued case.
OT2018—Two signed opinions in argued cases in November, Mount Lemmon Fire District v. Guido (by Justice Ginsburg) and Wyerehauser Co. v. U.S. Fish & Wildlife Service (by Chief Justice Roberts). Both were unanimous.
OT2017—Two per curiam opinions issued in November, neither in an argued case. One signed, unanimous opinion in an argued case, Hamer v. Neighborhood Housing Services of Chicago (by Justice Ginsburg).
OT2016—One per curiam opinion in November, not in an argued case. One signed, unanimous opinion in Bravo-Fernandez v. United States (by Justice Ginsburg; Justice Thomas had a concurrence).
OT2015—One per curiam opinion each in October and November, neither in an argued case.
OT2014—One per curiam opinion in October and three per curiam opinions in November, none in an argued case.
What this shows is that signed opinions in argued cases are quite rare in November, and the few we get tend to be relatively straightforward opinions in "easy" cases that produced unanimous opinions. It also helped when Justice Ruth Bader Ginsburg was on the Court, as she was routinely the first to issue a signed opinion. The Court's merit docket has been shrinking, on the other hand, so maybe the justices have had more time to work on opinions this Fall.
So it would be unusual for the Court to issue a signed opinion in an argued case tomorrow unless, of course, the Court felt the need to resolve a case quickly, as may be the case with the S.B. 8 cases. We will know whether this is the case tomorrow.