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The final four

The justices are expected to take the bench this morning for the second time this week to issue opinions in argued cases. After Monday’s two opinions, there are four cases left for them to decide; this post briefly summarizes those cases (in the order in which they were argued).

Florida v. Georgia (argued January 8, 2018): This is a relatively rare “original jurisdiction” case – a lawsuit that begins in the Supreme Court, rather than coming to the justices as an appeal. It arises from a decades-long dispute between Florida and Georgia over Georgia’s use of water in the Apalachicola-Chattahoochee-Flint River Basin, which begins in northeast Georgia and flows south into the Florida Panhandle, along the two states’ borders with Alabama. The Supreme Court appointed a special master to hold a trial in the case; last year the special master issued a report recommending that Florida’s request to limit Georgia’s water use be denied. Florida objected to his conclusions, and the justices heard oral argument in the case earlier this year.

This opinion is likely to come from Justice Stephen Breyer, the only justice who has not written a majority opinion yet for January. If Breyer is writing in this case, it would bring him to seven opinions for the term.

Janus v. AFSCME (argued February 26, 2018): This is a case filed by Mark Janus, an Illinois child-support specialist. Although Janus does not belong to the union that represents him, he is still required to pay the union a fee (usually known as an “agency fee” or “fair-share fee”) to cover the costs of collective bargaining from which he benefits. The Supreme Court approved such an arrangement over 40 years ago, but Janus is asking the justices to overrule that decision. He argues that the fee violates his rights under the First Amendment because it finances speech by the union that is intended to directly influence the government’s policies on issues like salary, benefits and pensions. Janus’ case is the third time that the justices have considered this question: In the first case, they concluded that the challengers were not actually government employees, and they deadlocked in the second case after the death of Justice Antonin Scalia.

The case likely hinges on the vote of the court’s newest justice, Neil Gorsuch, who did not tip his hand at the oral argument. This is the only case still left from the court’s February sitting, but it’s hard to predict who might be writing this opinion because three justices have not yet written opinions in February. Many court-watchers believe that if Janus wins, Justice Samuel Alito is likely to write the opinion, because he wrote the ruling in the first challenge to the union fees. One of the other justices who has not yet written in March is Justice Sonia Sotomayor, but she already has seven opinions for the term and therefore is not likely to be writing again. That leaves Justice Ruth Bader Ginsburg (who only has six opinions so far, with no other real prospects to pick up a seventh) as the other possible author, which would almost certainly signal a victory for the unions. Justice Elena Kagan would be the most logical author of a ruling for the unions because she wrote the main dissent in Harris v. Quinn, the first case in which the justices considered the union-fees question, but this case is a sufficiently big deal that Ginsburg – who would have the power to assign the opinion if she were, as would be likely, the most senior justice in the majority – might have wanted to keep it for herself.

NIFLA v. Becerra (argued March 20, 2018): This is a challenge to a California law that imposes two different sets of requirements on crisis-pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion and offer their assistance to pregnant women. Centers that are licensed to provide medical services (such as pregnancy tests and ultrasounds) must post notices to inform their patients that free or low-cost abortions may be available, while unlicensed centers (which provide pregnant women with diapers and formula, for example) must include disclaimers in their advertisements to make clear that their services do not include medical help. The centers argue that the law violates the First Amendment’s free speech clause.

Justices Clarence Thomas, Stephen Breyer and Sonia Sotomayor are all still without a majority opinion for March, but Sotomayor has already written seven majority opinions this term to Thomas’ six. Breyer has also written six, but, as noted above, he is likely to be writing in January’s water-rights case, leaving Thomas as the likely author.

Trump v. Hawaii (argued April 25, 2018): This is the challenge to President Donald Trump’s September 2017 order, which limited travel to the United States by citizens of eight countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. Like the two similar orders that preceded it, the September 2017 order drew immediate legal challenges. The state of Hawaii has two main arguments. First, it says, although the president has broad power over immigration, the order goes too far. Second, it contends that the order violates the Constitution’s establishment clause, which bars the government from (among other things) favoring one religion over another. The state points to the two earlier versions of the order, which targeted Muslim countries, as well as comments and tweets made by the president calling for a ban on the entry of Muslims into the United States.

This opinion is very likely to come from Chief Justice John Roberts, the only justice who has not written a majority opinion yet for April and who has written only five majority opinions so far this term.

Recommended Citation: Amy Howe, The final four, SCOTUSblog (Jun. 26, 2018, 7:19 AM),