Supreme Court OT2023 at the Middle of June

The justices still have over one-third of the term's cases remaining.

The Supreme Court issued six more opinions this week, bringing the total of decided cases to thirty eight. Twenty-three cases remain, which is a substantial number if the Court is going to complete its work before the end of June.

As was true two weeks ago, the rate at which cases have been decided matches that of last term, but is well behind the rate of decision-making we observed in prior years. In theory, there are nine remaining potential opinion days in June (setting aside the Juneteenth holiday), but as of this writing the Court does not plan to issue any more opinions until June 20. If that holds, we will likely see some opinions the first week of July. (It would be quite unusual for the Court to issue opinions after July 4, though that happened in OT 2019 due to Covid-19.)

The Court's opinions still show a surprising degree of unanimity, though (as expected) we are starting to see more divisions as the justices release opinions in the more difficult cases. The justices have been unanimous in the judgement in 25 of 38 cases decided so far -- approximately two-thirds of argued cases -- but some of those cases have seen sharp splits over rationale, and the proportion of unanimous cases is almost certain to drop between now and the end of the term.

While we have seen lots of unanimous cases, we still have not seen too many 6-3 cases decided along ideological lines. There have been a total of nine 6-3 decisions thus far, but only four have been along traditional right-left lines. Only two cases this term have been decided 5-4.

In terms of individual opinion authorship, here is where we stand.

• Sotomayor: 7
• Thomas: 6
• Alito: 4
• Kagan: 4
• Kavanaugh: 4
• Jackson: 4
• Barrett: 3
• Gorsuch: 2
• CJ Roberts: 2

There have also been two per curiam opinions, and some cases are likely to be merged into a single opinion (e.g. the two Chevron cases, Relentless and Loper-Bright will almost certainly be decided in a single opinion).

Of the remaining cases, the lion's share will be written by conservative justices. The liberal justices represent one-third of the Court, but have been responsible for 40 percent of the Court's majority opinions thus far. I would not be surprised if liberal justices write no more than four or five of the remaining majorities.

For those who have read this far, here are some purely speculative predictions about what we may see. I suspect the Chief to have quite a few major decisions, in no small part because he has only authored two opinions for the Court thus far. I could see him having Rahimi, Relentless (the Chevron case), Moore, and the Trump immunity decision. I suspect Justice Gorsuch as SEC v. Jarkesy, Murthy, and Fischer, and I would be surprised if Kavanaugh does not take Ohio v. EPA. I have no prediction with regard to NetChoice, other than I think the two cases will produce a splintered mess.

Of course, these predictions are worth no more than you paid for them, and we should know whether I am right soon enough.

Comments

[Syd Henderson]

What about Barrett? She should have about three more decisions.

[Aubrey LaVentana]

Maybe she writes Rahimi.

[Brett Bellmore]

I sure hope Roberts doesn't. He's a squish.

[David Nieporent]

No, Brett. He's a conservative.

Unfortunately, the modern GOP — especially the MAGA branch — simply doesn't grasp what that word means. It doesn't mean that one makes rulings that are compatible with the GOP's presidential platform. It means that one is cautious, not making broad decisions when narrow ones will do, not radically overturning precedent because one thinks one knows better than every judge that has come before.

[Brett Bellmore]

No, he's a squish. See, for instance, the absurd penaltax ruling to uphold the ACA.

He's a baby splitter.

[not guilty]

"Split the baby" is one of the most misused axioms in the language. The point of the story is that King Solomon never intended to divide the infant. He threatened to do so in order to smoke out which harlot was telling the truth.

[bernard11]

I think there are some scholars who claim that Solomon knew the answer all along, and used the ploy to establish his own cleverness.

His right to throne was in some dispute, and this case helped establish his legitimacy, all the more since the story was spread far and wide.

[Area Man]

Yeah, but in everyday speech words and phrases change meaning over time. “Begs the question” didn’t mean “raises the question,” but it does now because that’s how people use it. Countless others have changed, altered, or added to their meanings over time (which is why it’s important to determine a legal word or phrase’s meaning at the time it was passed into law to accurately enforce its dictates).

“Split the baby” is no different. It may have meant one thing at a certain point, and maybe still does. But its meaning has shifted over time to either mean something else entirely or taken on a new meaning. That’s just how language works.

[NOVA Lawyer]

“Begs the question” didn’t mean “raises the question,”

No, that's not what it means.

"Historically, begging the question refers to a fault in a dialectical argument in which the speaker assumes some premise that has not been demonstrated to be true. In modern usage, it has come to refer to an argument in which the premises assume the conclusion without supporting it."

Now, in vernacular, it is sometimes used, as you say, to mean "raises the question" or the like.

But, in British English, it is also the first defined as evading the issue.

Which is all to say, to the extent you suggest there is only one meaning for the term, you're wrong.

Eugene has posted about this and it's generally unwise to use the phrase as it's difficult to know how your audience will interpret it given the various meanings it can have.

"Split the baby" is also an idiom that now has multiple meanings.

[bernard11]

"absurd?" No. Accurate, I'd say.

[Mr. Bumble]

To be expected from someone who thinks that Roe was good law.

[David Nieporent]

No, he’s a squish. See, for instance, the absurd penaltax ruling to uphold the ACA.

No, he's a conservative. Which also includes not deciding major constitutional issues when one doesn't have to.

Also: "See, for instance," is dishonest when one's ferinstance is actually the only example one has.

[JoeFromtheBronx]

The ruling was not absurd.

The "individual mandate" was very well a tax (and not that special animal, a direct tax) and was carefully enforced using taxes. The law specifically guarded against various other ways of collection.

Taxes have various functions. The absurd part of his ruling was most of the rest.

[Brett Bellmore]

In regards to the NFA, the Supreme Court once ruled that, no matter how punitive, so long as Congress called something a "tax", the Court would not construe it to be a penalty.

For the ACA, Roberts declared that even if Congress DID call it a "penalty" he would not take them at their word.

He's a squish.

[Sarcastr0]

It says a lot, Brett, that an opinion that doesn't align with your priors is both not conservative and absurd. As though you are the arbiter of either of those objective standards.

You can have your own opinions, but your utter lack of humility means you have narrow, unearned confidence-based view wherein disagreeing with you is not just wrong but illegitimate and not conservative.

This narrowness is why you see liberals everywhere, plotting and coordinating. Because otherwise why would so many people and groups disagree with you, and thus reality?

[NOVA Lawyer]

This.

Brett, that's an accurate description of you. You might want to consider that you aren't right about everything. No one is.

Roberts' position was the conservative position. Even though you didn't like it.

[JoeFromtheBronx]

Rahimi will try to thread the needle on the Second Amendment, including the history and tradition-focused Bruen opinion.

The trademark case might be suggestive. Roberts & Kavanaugh was okay with history & tradition while not solely relying on it.

One of them would be a suitable person to write the opinion. Barrett was critical of history & tradition. She has a nuanced take. It might be more complicated for her to write the opinion.

[Area Man]

“Barrett was critical of history & tradition.”

She wasn’t critical of history and tradition. She was critical of (what she saw as) Thomas’s free-ranging use of it. It’s a similar criticism she made in a Confrontation Clause case last year.

I agree, though, that her use of tradition is more nuanced. But I think an even better word for her take is circumscribed. Tradition has its place, but it can only show so much.

[JoeFromtheBronx]

“Second, the Court never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question. I would adopt a standard grounded in both trademark law and First Amendment precedent, that reflects the relationship between content based trademark registration restrictions and free speech.”

You can critique my use of “criticize” but her opinion appears to me to be criticizing the general usage as compared to using a different approach.

[ah....Clem]

Is there any rule that says they have to issue opinions on all the cases by some date? They've sat on the immunity case, in my view aiding and abetting Trump's legal strategy to run out the clock. Can they just sit on it for another couple of months?

I know it is "customary" to get it all done by July 4th, but it's also customary to specify the legal questions at issue when taking a case and they didn't do that with the immunity case. So, is there anything other than custom that says they ever have to finish?

[Aubrey LaVentana]

" in my view aiding and abetting Trump’s legal strategy to run out the clock"

do you mean, it was Trump's strategy, or the strategy chosen to keep Trump from campaigning?

[hobie]

Well, take Cargill for example. Trump initially wanted Congress to act on bump stocks, but the NRA convinced him to allow the ATF to take administrative action, and the dummy acquiesced. See, the NRA knew that the makeup of the court and their hostility to agency proclamations meant that in a couple years the bump stock ban would disappear and people could get back to defending their hotel suites with 1100 rounds in 11 minutes. Now THAT is strategy! When the court has been bought and paid for by gun-loving real estate tycoons, the court can be made to do anything.

[Brett Bellmore]

Realistically, everybody was shocked when one court after another upheld this regulation; The notion that the BATF had that authority was facially absurd, or they'd have done it years earlier. But it was still in character for the NRA to decide to toss some group of gun owners under the bus; They did it before to machine gun owners back in '84 to get the FOPA passed more easily.

[Noscitur a sociis]

No, there’s no requirement that they issue decisions by any particular time.

I know it is “customary” to get it all done by July 4th, but it’s also customary to specify the legal questions at issue when taking a case and they didn’t do that with the immunity case.

What?

[ah....Clem]

A "normal" grant of cert specifies a fairly narrow scope, for instance:

Smith v. Spizzirri, 22-1218
Issue: Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration.

The immunity case is far broader in scope than is usual:
Issue: Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

I

[Noscitur a sociis]

A “normal” grant of cert specifies a fairly narrow scope

I mean, sometimes that's true. But sometimes it's not! I don't see anything irregular about that aspect of the case.

[ah....Clem]

Sorry, I was confused here. I recalled this article from January and thought it was about the immunity case when it was about the Colorado ballot case.

https://www.theatlantic.com/ideas/archive/2024/01/trump-supreme-court-ballot-colorado-fourteenth-amendment/677049/

It's an interesting read, so here's a brief excerpt in case the paywall is in the way:

...Rule 14.1(a) of the Supreme Court Rules requires petitioners to list “the questions presented for review, without unnecessary detail.” The questions must be “short,” and not “argumentative or repetitive.” Most important: “Only the questions set out in the petition, or fairly included therein, will be considered by the Court.
These are supposed to be specific questions of law and not facts....

In accordance with these practices, the Colorado GOP’s petition for certiorari presented three discrete questions of law: whether the president is covered by Section 3 of the Fourteenth Amendment; whether Section 3 can be enforced only through congressional legislation; and whether Trump’s disqualification violated the party’s First Amendment rights.

Trump’s petition took an entirely different approach—one that didn’t conform with the ordinary rules and practices. His lawyers presented only one question, and it wasn’t a discrete or pointed question of law but rather a blunderbuss one: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?”

...Why did the Supreme Court let Trump’s question stand? Ordinarily, when the Court doesn’t like the questions presented by a certiorari petition, it does one of two things: It doesn’t take the case, or, if it does take the case, it rewrites the questions as it sees fit. And, in fact, Trump’s opponents asked the Court to break the big question down to its component parts.

But the Court didn’t do that.

So, while the court was playing Calvinball in that case, they're not playing the same version of Calvinball in the immunity case. My error. We'll see how long they run out the clock on immunity.

[Brett Bellmore]

Cargill has dropped, and not in a way favorable to the BATF.

Not in a way terribly favorable to 2nd amendment rights, I hear. (Haven't had time to read it myself.)

And it's more than a little bit of an outrage that the Court didn't act fast enough to prevent huge damages to owners and manufacturers.

So I guess the tactic was a partial success for gun controllers, I expect to see it repeated.

[Brett Bellmore]

Well, I've scanned the decision and Alito's concurrence. Not bad on the 2nd, because not about the 2nd at all.

Not about the takings clause, either. And THAT is an outrage.

[Noscitur a sociis]

Not about the takings clause, either. And THAT is an outrage.

Why is it an outrage that the court didn't discuss an issue that has no relevance whatsoever to the case?

[JoeFromtheBronx]

Another court explained why such a claim should fail.

https://scholar.google.com/scholar_case?case=14181224848870205762

[Brett Bellmore]

It's redundant process, and thus unjust to the prevailing parties, to find that the forced disposession/destruction of lawful property was illegal, and then require a separate suit for the compensation.

But the Court routinely ignores the ruinous costs it imposes on people by demanding such redundant steps.

[JoeFromtheBronx]

Something somehow “redundant” is not necessarily constitutionally unjust. It is unclear if it was a “ruinous cost” here.

The law has been for quite some time that certain property can be found illegal and seized without compensation. It is a matter of public safety and so on.

The dispute is over the illegality. He was able to bring a suit regarding that question. If the property was wrongly seized, it would be just to be able to collect damages.

[Aubrey LaVentana]

“the Court didn’t act fast enough to prevent huge damages”

I sense that SCOTUS is refusing to act quickly, is less tolerant of off-again-on-again badminton with legislation (still looking for better phrasing here), and wants lower courts—and Congress—to do better work so they don’t have to clean it up. They can’t insist on those things, and insist upon lower courts taking SCOTUS rulings more sincerely, unless they set the example. Bruen response legislation was passed in haste, they will be struck down slowly, in detail.

Alito’s concurrence spanked Congress; it’s not that he thinks a bump-stock ban would be Constitutional if Congress were to pass one, necessarily. But if Congress had wanted to outlaw bump stocks, they could have done their job, instead of fundraising.

[JoeFromtheBronx]

Sotomayor and maybe Thomas are likely done.

Four justices have around two opinions left. There can be major opinions mixed in there.

Three are behind schedule. More likely they have major and/or complicated opinions.

We will probably have another Thursday/Friday schedule (eventually) next week. And, they can finish things off by the end of June by having three opinion days in the last week.

They might then have a separate clean-up order day (6/28, maybe).

[hobie]

Where will Clarence vacation this year during the break?

[Rev. Arthur L. Kirkland]

That's up to Harlan Crow and Leonard Leo.

Justice Thomas will report the gifts posthumously. Well, except for the cash.

[JoeFromtheBronx]

He will report some of them.

[Area Man]

Where will Sonya cry this year over the break?

[Sarcastr0]

Telling you think that's anywhere in the same ballpark.

[Frank Drackman]

Somewhere you couldn’t afford. I hear there's this thing called a "Life", you should get one.

[CindyF]

I believe Sotomayor is likely done (or maybe she will write Snyder v U.S. or Munoz), but Thomas will probably author at least two more Opinions. I think Thomas will write the opinions in the Chevron deference cases (something he would greatly enjoy doing). I hope he also has the Murthy v Missouri 1st Amendment case.

Roberts will probably write the immunity opinion himself so he can "split the baby" and try to make everyone happy. He worries too much about "reputation of the Court" and attacks by the Democrats who are constantly nipping at his heels, but I don't see how they can rule other than the former President had some level of immunity. Back to the lower court the case will go. Alito may have the Fischer case and maybe the NetChoice v. Paxton case.

I guess we will probably get a case or two more from Jackson and Kagan (Gonzales & Erlinger cases?). Gorsuch will get the Indian Health Services case (Becerra) and maybe the Texas v. New Mexico case regarding the Rio Grande Compact .

No matter the outcomes, SCOTUS opinion days are always fun.

[David Nieporent]

but I don’t see how they can rule other than the former President had some level of immunity.

That would be an easy two sentence decision: Presidents aren't kings. They don't have immunity.

[NOVA Lawyer]

He worries too much about “reputation of the Court”

Funny, I think he worries too little about it. I think it is Thomas and Alito, in particular, who appear not to worry about it at all. Much to the detriment of the nation.