Supreme Court Bingo: How It Might Rule
As the Supreme Court term winds to a close and the number of decisions left winnows down to a handful, court watchers can increasingly game out who is authoring the remaining opinions and what those rulings might be. I started this on Twitter on Thursday and, after today’s announced decisions, have some degree of confidence as to how things are going to play out.
The methodology is hardly a science, so these shouldn’t be taken as firm predictions. Rather, they are more closely akin to the “best educated guesses.” The methodology starts from two basic premises: The justices tend to keep the number of overall majority opinions written in each term by each justice more or less even, and the justices try to keep the number of cases written in each month even. Obviously, this can’t be done perfectly, but as a rough rule, it tends to work.
There were 66 cases argued this term, which means that each of the nine justices should write seven opinions, with a few authoring eight. So far, Stephen Breyer has authored eight, meaning he is most likely finished writing. Ruth Bader Ginsburg has authored six, so she has at least one more coming out. Sonia Sotomayor and Elena Kagan have authored seven, so they are probably done.
On the conservative side, Samuel Alito, Clarence Thomas and Antonin Scalia have authored seven. Chief Justice John Roberts has written six, and Anthony Kennedy has authored just four. This means that almost half of the opinions left to be written are probably Kennedy opinions.
Of course, this isn’t a hard, fast rule. In particular, justices sometimes lose their majorities (with sometimes substantial consequences to the outcome) after opinions are assigned, and cases are sometimes dismissed on appeal. But this approach nevertheless gives us a pretty good idea of where things stand.
There is also a third important consideration. The most senior justice in the majority tends to assign cases. The current seniority ranking is: Roberts, Scalia, Kennedy, Thomas, and Ginsburg. These justices tend to take the most important opinions for themselves, though again, this is not a hard and fast rule. When assigning decisions to other members of the court, they tend to be strategic, so that the resulting decision does not imperil the majority. This is why a conservative with unique views (even among conservatives), such as Clarence Thomas, does not author many opinions in high profile, controversial cases.
The oldest case on the docket is Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. The question here is whether the Fair Housing Act allows for a disparate impact claim – that is, a claim that a practice can violate the FHA by virtue of disproportionately affecting a racial group. There is only one justice from the January term who did not author a case: Kennedy.
Kennedy is probably the most misunderstood member of the court. He’s frequently described as a swing vote, but it is probably more accurate to say he is heterodox. Unlike Sandra Day O’Connor, who really did try to balance factors and split proverbial babies, Kennedy has divergent views that tend to be strongly held. On matters of race (such as affirmative action) and the scope of government, he tends to be pretty conservative. Nothing is written in stone, but this suggests that he will probably be writing with the conservative justices here. Oddly, liberals might be better off if Scalia were writing the opinion, as he seemed skeptical at times of the state’s claims. On the other hand, perhaps Scalia is in the majority with Kennedy and the liberal justices. Again, this is not a science.
February had two of the most highly anticipated cases of the term: King v. Burwell and the Arizona redistricting case (which asks whether redistricting lines drawn by independent commissions -- and that the legislature does not have a chance to vote upon -- are constitutional). King v. Burwell asks whether the Affordable Care Act was written to provide subsidies via the federal insurance exchanges (it is undisputed that it provided subsidies through state exchanges).
Three justices have yet to write opinions for the February term: Roberts, Kennedy and Ginsburg. Obviously, a lot comes down to whether Ginsburg has an opinion to author. I think the best argument is that she does not. First, she authored two opinions in the previous sitting and, second, she is a notoriously fast opinion writer, so the case probably would have been handed down by now if this one was hers to author. Third, it is hard to see either of these decisions falling to her, as Kennedy and/or Roberts would almost certainly have to vote with the liberals to form a majority, and would probably take the case for themselves to limit its scope. So it is hard to say.
Assuming that the chief justice and Kennedy have the two opinions, I would bet that the Roberts has King and Kennedy has the Arizona commission decision, although for our purposes it doesn’t matter. Kennedy was skeptical of the commission at oral argument, and Roberts is less likely to flip on this. In other words, the commission seems to be in trouble regardless of who the author is.
On King, Roberts said nothing at argument, and Kennedy asked tough questions of both sides. I still believe this case is a far greater threat to the Obamacare subsidies than liberal commentators realize, and think that Roberts’ vote in the original Obamacare case offers little guidance as to how he would vote here. If the subsidies do survive—and I think it is a coin flip—I suspect that it will be because of the federalism argument, which I will confess I do not understand thoroughly enough to fully evaluate. With that caveat, it seems to offer the chief justice or Kennedy a chance to save, and even advance, a strict textualist jurisprudence, as well as the court’s federalism rulings, without picking a fight with the administration.
There is only one case outstanding from March, which I actually think is the most important one of the term: The question of whether the EPA’s carbon emissions regulations sufficiently took into account the costs of those regulations. On Thursday, I noted that there were only two justices who had not authored an opinion for March, and that it was unlikely that the EPA case would fall to a relatively junior justice such as Kagan. That left the patents case for her, which she did in fact announce Monday morning.
So the only justice who has not authored an opinion from that sitting is Scalia. Obviously, this would seem like a very bad fact for liberals, and it probably is, especially since Scalia had authored a previous ruling on greenhouse emissions. Even if Kennedy writes a second opinion this sitting, he signaled at oral argument that he would not give the EPA exactly what it wants. The most likely result is that this is a Scalia opinion delivering bad news for the EPA, but we have quite a bit of uncertainty here.
This leaves April. If we’re correct about how things have played out so far, Breyer and Scalia are done writing opinions. Ginsburg and Kennedy each have at least one more to write.
There are two major cases left: One involving the constitutionality of Oklahoma’s death penalty protocol, and the gay marriage decision. A third, Johnson v. United States, involves the never-ending, somewhat arcane, drama over the Armed Career Criminal Act (ACCA).
I think there is virtually no doubt that Kennedy is writing the marriage equality decision, and that it will expand the rights of gay couples. There is slightly more doubt as to how far Kennedy will go. He expressed concern at oral argument that perhaps the court ought not to decide these matters. Moreover, in 2013, three of the liberal justices somewhat surprisingly voted to avoid deciding the gay marriage issue outright in a case out of California, when Kennedy was prepared to proceed to the merits.
Interestingly, California already provided for civil unions, so the only issue there was whether a state had to call the union “marriage.” It may be that the liberal justices feared that Kennedy could be persuaded that civil unions were enough, and hoped that the passage of time would change his mind. Finding that civil unions are both necessary and sufficient for constitutional purposes might also synthesize Kennedy’s concerns that gay couples (and their children) ought to be recognized by the state with his concern about the judiciary ultimately deciding this issue. I think this is very unlikely, but it is a real enough possibility that we should at least consider it.
The other question in the case concerns the degree of “scrutiny” that ought to be applied to classifications involving sexual orientation. This is potentially important for other cases coming down the pike, including gay adoption laws. Kennedy hasn’t sent strong signals on this issue, and he may wish to avoid the question by simply ruling that, even under minimal scrutiny, gay marriage laws cannot survive.
The four conservative justices, plus Thomas, who rarely asks questions at argument, were openly skeptical of the challenges to Oklahoma’s death penalty protocol. While oral argument is not a clear signal of how things will turn out, it seems that one of the conservative justices will be writing this opinion. This would leave the ACCA case for Ginsburg (at oral argument there seemed to be a nearly unanimous majority against the government).
To summarize, there are only a handful of people who really know how these cases are going to turn out. But, given the evidence, the best tentative conclusions are probably as follows:
The FHA case: Almost certainly an opinion authored by Kennedy, probably finding the FHA does not allow for a disparate impact claim.
The Arizona redistricting case: Most likely Roberts or Kennedy, probably striking down the commission. The chances that Ginsburg writes this opinion, however, are not insubstantial.
The Obamacare subsidies case: Either Roberts or Kennedy. This is a “pick ’em” on the outcome. If they do find for the government, expect federalism concerns to play a large role.
The EPA case: Scalia seems like the most likely author, which would almost certainly be a setback for the EPA. Kennedy could be writing this, however, especially if Ginsburg writes the Arizona redistricting case.
The ACCA case: This is probably Ginsburg, unless she has the Arizona redistricting case. If she does not write this opinion, anyone other than Breyer (or Scalia, if he does author the EPA case) is a likely candidate.
The Oklahoma death penalty case: This seems likely to go to a conservative justice. Under our rubric, Alito and Thomas are the only conservative justices who don’t have an opinion for this sitting (and who haven’t written eight opinions). But again, oral argument isn’t always clearly indicative of how things turn out, and we might be incorrect in our assumptions about how things play out in the other cases.
Marriage equality: This opinion will probably be authored by Kennedy. The real question is just how far he is willing to go.