New StatPack, Plus What to Expect Next Week
A new StatPack is available here.
As the StatPack indicates, there are now ten cases to be decided before the Court recesses for the summer, including three of the highest profile cases of the year – DC v. Heller (Second Amendment), Kennedy v. Louisiana (death penalty for child rape) and Exxon v. Baker (punitive damages over Exxon Valdez oil spill). We wanted to give those readers awaiting these decisions a quick primer on what to expect over the next week.
The timing of opinions. There is only one decision day next week on the Court’s official calendar: Monday, June 23, when the Court’s public session will begin at 10 am eastern. However, as the Court has done for the past two weeks, it’s certain that the Court will sit on one or more additional days later in the week. Based on past practice, if the Court holds one additional opinion day, it will likely be the Thursday (June 26) as it did last Term. If it holds two additional opinion days (which is more likely, given that ten opinions remain), the added days will likely be Wednesday (June 25) and Thursday (as it did in the 2005 Term).
(Of course, the Court isn’t required to finish by June 26, but it has concluded the Term before July every year for the last decade. Monday June 30 is also a possible last day, but is unlikely because the Court internally plans on finishing each Term during the fourth week of June.)
After the jump, I discuss the basics of how we predict which Justices will author which opinions and our current sense on that issue.
Predicting which opinions will be issued. No one unaffiliated with the Supreme Court is told what opinions will be handed down on a given morning or even how many will be issued, and this includes the Supreme Court press corps. Thus, which opinions are issued is a complete to surprise to everyone outside of the building except for the last day of the Term, when we can use the process of elimination to predict which opinions will be issued.
Predicting opinion authors. First, a bit of background: at the Supreme Court, the most senior justice in the majority assigns who will author the opinion in a given case. Since the Chief has been in the majority in all but five cases this term, he has assigned the author of 54 opinions. Justice Stevens, who has been in the majority in all of those cases in which the Chief dissented, assigned the author in four of the remaining cases. In one case, US v. Santos, it’s not quite accurate to say that Justice Stevens “assigned” the plurality opinion to Justice Scalia to the extent that Justice Alito may have originally had, but then lost, a majority. For more on the complexities of the Santos case, see Marty Lederman’s post here.
While assignment is the prerogative of the Chief in most cases, it is common practice for the Chief and the Court to attempt to divide opinions up somewhat evenly, both within each sitting and across the term as a whole. For various reasons, including the potential for a justice to switch his vote, the varying number of times in which a justice is actually in the majority, as well as the simple fact that the number of cases decided will likely not be an exact multiple of nine, the opinions are never divvied up exactly evenly. Last Term, each Justice authored between 6 and 8 majority opinions.
Likewise, individual sittings are divided up roughly but not exactly evenly: for cases argued in this term’s November sitting, seven Justices authored one majority opinion, Justice Souter authored two majority opinions, and Justice Alito authored none. Nonetheless, looking for the even distribution of opinions among the justices is the best way we have to guess the authors of outstanding opinions.
February. In this sitting which featured only seven arguments, there are two outstanding opinions and six justices who haven’t yet written. As Tom pointed out in today’s LiveBlog, all of those justices have already written twice in one sitting. The bottom-line: in terms of predicting who is writing Exxon or Morgan-Stanley, “it’s a complete toss-up.”
March. Two opinions remain: Rothgery v. Gillespie and the case many of our readers our waiting eagerly for, DC v. Heller. Two justices have not yet written in the sitting: Souter and Scalia. As both of them have only written five total opinions thus far, it seems quite likely that these two are the outstanding authors, barring some sort of vote-switching. Based on the tenor of oral argument, it is widely expected that the individual rights view of the Second Amendment will prevail in the guns case, which means that it appears that Justice Scalia may well be writing the opinion for the majority, leaving Rothgery to Justice Souter. It remains a possibility, of course, that if Justice Scalia is the author, his opinion commands only a plurality.
April. With six remaining opinions from the final argument session, it’s tough to predict who is writing any of these cases. In order to achieve a term-wide balance of opinions, Justices Scalia, Kennedy, Souter, and Alito should each have at least one of the April cases. The other two authors could be any of the other Justices. We may be able to get a better handle on this sitting after Monday’s opinions.