• June 28, 2021

Supreme Court Bingo, 2021 Edition

One of the little joys of June, for Supreme Court watchers at least, is a game I call “Supreme Court Bingo.” Through it, we can get an idea of ​​who is writing key opinions at the end of the court term and get a glimpse into the future of American law.

To understand how this works, one must understand the rhythms of the esteemed body. The superior court hears a set number of cases each month; After oral argumentation, the magistrates meet in their conference room, alone, to discuss and debate the cases. They vote, and then the superior judge in the majority assigns an author to the case. The Chief Justice is treated as the highest-ranking judge, thus John Roberts surpasses Clarence Thomas and Stephen Breyer even though they were appointed to the court before him.

This can have consequences. If you can find out who is writing an opinion, you know that the lawyer is in the majority. So if Sonia Sotomayor is in the majority, you can be pretty sure that opinion will not be very conservative. Similarly, an opinion of Thomas is unlikely to be far to the left. Also, you can tell us something about the tone and reasoning of the review. Thomas is not known for writing a narrow opinion; on a narrow result, you are more likely to agree than the lead author.

How do we find out the authorship in advance? The judges also do their best to keep the number of opinions uniform each month and during the period. As the term progresses and judges announce their opinions, the list of potential authors is narrowed for each remaining opinion.

The game is usually more fun than it will be in the current period, because the court usually dictates your most important decisions at the end. In this term, there is only one potential blockbuster left and one less important case that nonetheless has potentially important ramifications. However, it is still a worthy endeavor.

Five opinions remain to be issued. It turns out that if you assign one opinion to each of Justices Elena Kagan and Amy Barrett, one to Roberts, and two to Samuel Alito, you will end up with a result where Thomas has written seven opinions, Barrett has written five (she was not yet. ). on the court for the October arguments), and everyone else has written six. Also, you can do this by keeping roughly the same number of cases assigned each month.

The easiest case to solve is also the most significant: Brnovich vs. the Democratic National Committee. Because it is so important, we will come back to it later to discuss it in more detail. The only judges who have not written a February case are Thomas, Breyer, Alito and Brett Kavanaugh. Thomas has already presented seven cases in this term, so he is clearly not the author. Breyer and Kavanaugh have produced six. It is possible that one of them is writing Brnovich, if Alito lost his majority because someone changed his vote (either in this case or in some other case). But that’s not the most likely outcome; Alito is almost certainly writing Brnovich. Again, more on this later.

Three opinions from April are still pending. Two of them involve patent law and an energy statute (called “FERC”) and are of little consequence. The third, Americans for Prosperity Against Bonta, implies the constitutionality of donor disclosure requirements and could have far-reaching consequences for campaign finance law in the future. Neither Barrett nor Roberts have written a decision this month, which includes 13 total rulings; they almost certainly have two of these opinions, and Alito or Kagan have one.

Obviously, liberals would prefer Kagan to write the AFP decision. However, if one were to gamble, the smart money would probably be for her to write the patent law decision, if only because she has carved a niche on the court in that area. Regardless, whoever it is from Alito or Kagan who isn’t writing a review in April is probably writing. Johnson vs. Guzmán Chávez, the only case left from january. This case involves the process to remove people from the US illegally and is relatively limited in scope.

Let’s now go back to Brnovich, which is a potentially explosive opinion that requires a backstory to explain. There are two main aspects of the Voting Rights Act of 1965: Section 2 and Section 5. We can divide the laws revised under this statute into two general aspects: cases of vote dilution, which generally arise from redistricting, and cases of suppression of votes, arising from changes in voter laws (for example, Liberals present cases of photo identification laws as suppression of votes cases).

Section 5 requires certain states with a history of discrimination to seek federal permission before they can change laws or regulations related to elections. Partly because of this, the body of law surrounding vote suppression cases is not particularly well developed; the most far-reaching laws were stifled in the cradle (because each state must redistribute, we still have a good number of dilution cases).

When the Supreme Court struck down the formula for deciding which states would be covered by Section 5, states were given greater freedom to change their electoral laws. We’ve seen a proliferation of vote suppression claims in the last decade, with little guidance from the Supreme Court on what the appropriate standard would be.

Brnovich, which involves a couple of statutory provisions that prohibit the collection of ballots and require officials to reject ballots for state offices issued in the wrong precinct, gives the Supreme Court an opportunity to provide such clarification. Because there are relatively few precedents in this field, you also have a wide margin in the type of opinion that would be written.

Last week there were three potential authors for the opinion: Breyer, Kavanaugh and Alito. Had Breyer been the author, he probably would have written a very narrow and fact-specific opinion, perhaps reversing the Ninth Circuit (which repealed the Arizona statute in question) on procedural grounds, such as standing. But then he issued the opinion in Mahanoy Area School District v. BL, a case of the First Amendment, probably finishing its writing during the period.

All eyes were on Brett Kavanaugh then. Because you are a fairly minor judge, you will only be assigned the opinion. The speculation was that the Chief Justice might have assigned him an opinion that would be centralized, but perhaps fact-specific or limited in scope. But then Kavanaugh wrote his sixth opinion in TransUnion vs. Ramírez, probably finishing his writing during the period.

That left Sam Alito as the obvious potential perpetrator. Alito is one of the more conservative judges in a court with six center-right judges, and he has expressed frustration with Roberts’s penchant for narrow decisions. Whatever you are writing about, it is unlikely to be limited.

The question, then, is simply as broad will be your opinion. There are a number of standards the court could announce for these claims, and Alito would not necessarily have to endorse the broader one. The boss may well have assigned you an opinion that supports a standard that is not acceptable to liberals, but does not give conservatives everything they want.

However, another possibility looms. Roberts might not be in the majority; Instead, we could see a 5-4 split, as we saw in some of the COVID-related religious freedom cases, where Justices Thomas, Alito, Neil Gorsuch, Kavanaugh, and Barrett form a majority, leaving the presiding judge to disagree. or write a narrower concurring opinion, perhaps united by the liberal bloc.

If the Chief Justice disagrees, Thomas would be the assigning judge, and he would probably be content to yield this opinion to Alito, who is probably the judge closest, ideologically speaking, to himself. In this sense, since the boss gets the first “dibs” in opinions, Roberts usually makes the most interesting cases for himself, especially when successful decisions about race are being broadcast. It seems unlikely that you will miss this case, although anything is possible.

Of course, there are other possibilities; Ultimately this is just informed speculation. Alito may have lost his majority, or he may be drafting an opinion for a highly divided tribunal of which he is the “author” in name only.

In general, we could make some reverse probabilities as follows: A 5% probability that Alito is not the author; a 20% probability that there is a very fractured opinion, of which Alito is the technical author; a 25% chance that Alito will write a 6-3 conservative opinion; and a 40% chance that you are writing a 5-4 “Katie-bar-the-door” decision.


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