Supreme Court OT2023 in the Final Stretch

The justices are rushing to close out the term before the end of June.

The Supreme Court issued nine opinions in two days this week as the justices work to finish up October Term 2023. The justices have decided forty-seven cases thus far, with fourteen left to go (though these fourteen may be decided in as few as twelve opinions). Wednesday, June 26 will be the next opinion day. If the justices are ready to issue four or five opinions per day, they could meet the traditional-if-informal deadline of ending their work before July.

As I have noted before, the justices have shown a surprising degree of unanimity thus far this term. (See also this post by Adam Feldman at Empirical SCOTUS.) The Court has been unanimous in the judgment in 55 percent of the cases decided this term. Note, however, that in some of these cases the justices have diverged sharply in their reasoning, and not all of those cases featured a unanimous opinion for the Court. Today's opinion in Smith v. Arizona is a case in point, as are Trump v. Anderson and Vidal v. Elster. Given the cases left for the justices to decide, the overall proportion of unanimous decisions is likely to drop.

Among those cases that were not unanimous, two were 8-1, three were 7-2, thirteen were 6-3, and three were 5-4. Of note, only five of the Court's 6-3 decisions thus far this term divided the justices along traditional ideological lines. Some of those cases have also featured quite surprising line-ups, such as today's decision in Erlinger v. United States, in which Justice Gorsuch wrote for the Court, joined by the Chief Justice and Justices Thomas, Sotomayor, Kagan, and Barrett, while Justices Alito, Kavanaugh and Jackson dissented.

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

• Sotomayor: 7
• Thomas: 7
• Kagan: 6
• Kavanaugh: 5
• Jackson: 5
• Alito: 4
• Barrett: 4
• CJ Roberts: 3
• Gorsuch: 3

There have also been three 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; we'll see if that happens with the two NetChoice cases).

Thus far this term, the "liberal" justices have written thirty-eight percent of the opinions for the Court, despite representing only one-third of the Court. This leads me to think we will few (if any) additional decisions authored by Justices Sotomayor, Kagan, or Jackson -- though I think one more Jackson opinion is likely.

Now, for what you've all been waiting for, my purely speculative predictions for what we may see for the balance of the term.

• SEC v. Jarkesy - Gorsuch
• Purdue Pharma - Roberts
• Loper Bright/Relentless - Roberts
• Corner Post - Gorsuch
• Ohio v. EPA- Barrett (a change from prior prediction of Kavanaugh)
• NetChoice - Alito (though likely a splintered mess across the two cases)
• Murthy - Barrett (a change from prior prediction of Gorsuch)
• Snyder - Jackson
• Fischer - Gorsuch
• Grants Pass - Alito
• Moyle v. U.S. - Kavanaugh
• Trump v. U.S. - Roberts

As always, these predictions are worth no more than you paid for them, though I will note that I correctly called Rahimi, Texas v. New Mexico and Smith but not Erlinger.

Comments

[Dr. Ed 2]

Smith v. AZ -- WTF????

[David Nieporent]

I would ask if you had something more intelligent to say, but I already know the answer.

[QuantumBoxCat]

In the final two weeks of the October 1896 term, the Supreme Court handed down 51 signed opinions disposing of 64 cases.

On Monday, May 10, 1897, the Court handed down 23 signed opinions disposing of 32 cases. 17 opinions were from orally argued cases and 6 opinions were from cases submitted on printed briefs alone.

On the final day of the term, Monday, May 24, 1897, the Court handed down 28 signed opinions disposing of 32 cases (as well as one signed decree disposing of an original jurisdiction case). 24 opinions were from orally argued cases and 4 opinions were from cases submitted on printed briefs alone.

That was back when the justices had to actually work to keep their docket moving. It was common for a justice to concur or dissent without actually writing a separate opinion, which would require time. When a case like Rahimi, with an 8-1 outcome, has 103 pages in opinions, I think that's a sign the Court can handle more cases.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The problem is from the government's reach extending into every nook and cranny.

[JoeFromtheBronx]

Hey, I figured the rookie would write the original jurisdiction case, especially since she already had one previously. Roberts cleaning up the mess was also not surprising.

The Supreme Court handled many uncontroversial rulings. Other cases were important (the 2A case) but carefully taken to invite more unanimity. There was a lot of work to limit the reach of cases. The per curiam yesterday was a rare failure.

BTW, Alito might be feeling under the weather. He has not shown up for two days.

[Magister]

Oh, no. Has anyone checked the flag(s) at the Alito house?

[Mark N.]

I wonder if the justices could reduce their workload a bit and decide more cases faster if they wrote fewer pointless concurrences. Did U.S. v. Rahimi really need a parade of 5 separate concurrences (4 of them solo), by Sotomayor, Gorsuch, Kavanaugh, Barrett, and Jackson? At least Roberts managed to keep the controlling opinion itself clean and not a fractured mess.

[JoeFromtheBronx]

I understand the liberals concurring since they dissented (or would have) in the previous case.

The other three expressed their varying views. Gorsuch’s opinion was a glorified concurrence in judgment. Barrett flagged her differences with Thomas. Kavanaugh blathered for twenty pages. The views would make unanimity harder in a less close case.

The importance of the constitutional issue makes the concurrences more forgivable.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

There's a better explanation.

The importance of the constitutional issue makes the concurrences more forgivable.

Like the network effect or factorials, the more government intrudes, the even more its effects dominate the scene.

The expansions of the constitutional issues makes the differences more inevitable.

[Purple Martin]

Yes, perhaps forgivable for Rahimi. The one that struck me was last week's relatively minor Vidal v Elster, a unanimous decision, narrowed by avoiding potential constitutional 1st Amendment analysis:

“Lanham Act bars registration of a trademark that identifies a living individual without his consent. The court holds that this restriction does not violate the First Amendment.”

Yet, well, here’s the decision blurb from SCOTUSblog

Judgment: Reversed, 9-0, in an opinion by Justice Thomas on June 13, 2024. Thomas announced the judgment of the court and delivered the opinion of the court, except as to Part III. Justices Alito and Gorsuch joined that opinion in full; Chief Justice Roberts and Justice Kavanaugh joined all but Part III; and Justice Barrett joined Parts I, II-A, and II-B. Kavanaugh filed an opinion concurring in part, in which Roberts joined. Barrett filed an opinion concurring in part, in which Justice Kagan joined, in which Justice Sotomayor joined as to Part I, II, and III-B, and in which Justice Jackson joined as to Parts I and II. Sotomayor filed an opinion concurring in the judgment, in which Kagan and Jackson joined.

I'd like to think there was a flowchart for that, but probably not.

[JoeFromtheBronx]

In that case, a better written majority opinion would have resulted in a cleaner result. Thomas insisted on putting an unnecessary section that required Roberts & Kavanaugh to add a brief concurrence.

His stridence led to the other opinions, which were also attacking larger ideological game.

[GKHoff]

It would look something like a schematic of the Habsburg dynasties.

[hobie]

Professor Adler, you should be able to divine Harla...Thomas' rulings now depending on his travel itinerary for the Court's summer holiday. More largess = more MAGA

[Rev. Arthur L. Kirkland]

How many more times (years) will Justice Thomas reveal substantial (if not breathtaking) gifts and claim they were "inadvertently omitted" from his previous disclosure documents?

How much longer will the other Justices tolerate this misconduct?

[hobie]

Thomas has to be the easiest money the Federalist Society ever spent. They picked the most weak-minded, most easily-corruptible justice and sent a couple of operatives (my speculation) to groom him over the decades. My hat's off to the Federalist. They played the long game and they won.

[MosheB]

What is going on with all of these revisions? https://www.supremecourt.gov/opinions/slipopinion/23 Are the Justices hiding their opinions from their clerks to prevent leaks?