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Supreme Court Bingo: How Rulings Might Play Out

Supreme Court Bingo: How Rulings Might Play Out

By Sean Trende - June 13, 2013

We’re nearing the end of the Supreme Court’s term. By the time June is over, all of the court’s opinions will be handed down, and the justices will take a break before resuming at the end of summer.

We now have enough information that we can start to play what I like to call “Supreme Court Bingo.” This is a game where you look at which justices have authored opinions in particular sittings of the term, crossing their names off a grid-like sheet as they do so. The idea is to attempt to deduce which justices are writing significant opinions, and what that authorship might mean for case outcomes.

This game derives from a few loose rules that the justices try to follow with respect to authorship. First, they try to distribute evenly the number of opinions that each justice writes over the course of a term; in other words, you’re unlikely to have a situation where one justice writes 11 lead opinions and another writes three.

Second, they try to keep the number of opinions from each monthly sitting evenly distributed. This can’t always be strictly followed: If there are 10 cases heard in a sitting, obviously someone will have to write at least two opinions. And sometimes when a justice begins to write an opinion, rifts appear between him and other justices in the majority. If one of the justices in the majority bolts, the author’s opinion will become a dissent, and one of the justices who had been writing a dissenting opinion will get the majority opinion, even if he or she had previously been assigned another case from that term.

So far, 50 full opinions have been handed down. Twenty-two are outstanding, if you count DOMA and Proposition 8 as a single case. This suggests a total of 72 opinions for the term, which works out evenly to eight per justice.

The following chart provides the number of opinions each one has written this term, and is sorted by the number of opinions remaining if we assume each will author eight by the time the term concludes.

The remaining opinions are not distributed evenly with regard to ideology. The five right-of-center justices have 17 opinions remaining, while the four liberals only have five. Ruth Bader Ginsburg, probably the most reliably liberal vote of that latter group, has written all of her opinions (she is well-known for doing so swiftly).

We can break this down further by looking at our “Bingo” sheet, taken from data available at the outstanding Scotusblog. This shows each sitting, and how many opinions each justice has authored for that sitting.

The only opinion outstanding from the October term is Fisher v. University of Texas, an affirmative action case. The only justice who hasn’t authored an opinion is Anthony Kennedy, so there’s a high probability that he is writing the lead opinion in this case.

Kennedy is probably the most misunderstood justice (followed by Stephen Breyer and probably Clarence Thomas). He is constantly portrayed in the press as a moderate, but he is not. He has heterodox beliefs, to which he adheres strongly. Remember, in the health care case, he voted to strike down the law in its entirety; that’s not something a moderate (in the classical sense) does.

On race issues, Kennedy has been a fairly reliable conservative. He dissented in the 2003 Grutter v. Bollinger case, which allowed the University of Michigan Law School to continue its affirmative action program. He wrote a separate dissent, however, where he emphasized that race could be used as one of many factors, so long as that use was narrowly tailored to a compelling governmental interest. He has reiterated this view in subsequent cases, such as Parents Involved v. Seattle School District No. 1 (striking down racial classification systems for high schools).

So the most likely outcome for Fisher is probably an opinion that allows for some limited use of affirmative action, but which further constricts the applicable test. Given how long the opinion has taken to be handed down, I’m guessing there’s some sort of fractured opinion forthcoming, suggesting that neither side is getting everything it wants.

The November term is complete. There is one opinion outstanding from December, Vance v. Ball State University, which deals with the reach of supervisor liability in an employment discrimination case. The only justice who hasn’t authored an opinion from that term is Samuel Alito, who has become a reliably conservative vote. At oral argument, he seemed to favor a rather restrictive standard for supervisor liability, although the case is in an odd procedural posture and any decision could wind up being limited in its scope.

For January, Thomas, Alito, and Elena Kagan have yet to publish opinions. The remaining four cases all cover some fairly obscure topics. That’s not to say they’re not important, but rather that they’re important only in niche areas. The biggest question here is which justice ends up authoring two opinions from this sitting (aside from Chief Justice John Roberts, who is already authoring two). That’s important, because if Sonia Sotomayor or Kagan writes two, then that justice is likely done writing for the term.

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Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at strende@realclearpolitics.com. Follow him on Twitter @SeanTrende.

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