SCOTUS Watch: Monday Madness


SupremeCourtThe last day for U.S. Supreme Court opinions to be issued from the 2014-15 Term is on Monday, in addition to orders being issued in pending cases.

The remaining opinions to be issued are:

Arizona Legislature v. Arizona Independent Redistricting Commission (13-1314)

Note: The other redistricting case from Arizona, Harris v. Arizona Independent Redistricting Commission (14-232), was distributed to conference on January 9, 2015. No action was ever ordered by the Court. I would expect to see the dispensation of this case in the Court’s order list, and possibly referenced within the opinion in Arizona Legislature.

Glossip v. Gross (14-7955) (Oklahoma’s lethal injection protocol) Arizona uses a similar protocol.

Michigan v. Environmental Protection Agency (14-46) (cost analysis for regulation of pollutants from electric utilities).

Note: Related case: National Mining Association v. Environmental Protection Agency (14-49)

There is a parlor game that some Court observers like to play using the “Stat-Pack” statistics.  The work of the Court is remarkably evenly distributed among the several justices, so it is possible to “predict,” with no degree of certainty, who has an opinion left to write based upon the number of opinions already issued by each justice.

SCOTUSblog’s live blog of opinions the other day included this comment from one of its Court bloggers, Eric Citron:

  • Eric Citron

    It certainly looks from our Stat Pack like RBG has opinions coming. The Arizona Redistricting case is the only case out from February and only Kennedy and Ginsburg have not written.

    June 25 at 7:29 AM

  • Eric Citron

    Our money is on Ginsburg, but I cannot fit the proof into this margin (Fermat’s Last Theorem reference ftw)

    June 25 at 7:30 AM

Justice Kennedy wrote the majority opinion in two cases this past week in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. (Fair Housing Act), and Obergefell v. Hodges (same-sex marriage). So does this mean the odds that “Notorious RBG” has the Arizona Legislature opinion have gone up? Probably not.

Sean Trende writing about the redistricting case at Real Clear Politics a week ago, Supreme Court Bingo: How It Might Rule, had this to say:

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.

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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 Arizona redistricting case: Most likely Roberts or Kennedy, probably striking down the commission.  The chances that Ginsburg writes this opinion, however, are not insubstantial.

If “Notorious RBG” has the opinion, it would be a major surprise and probably cause for optimism. If Chief Justice Roberts has the opinion, he has a long history of being anti-voting rights; expect the worst.

While we are playing this parlor game, what if “Notorious RBG” has the opinion, but sides against the Arizona Independent Redistricting Commission? Then what will her liberal fans have to say?

Stay tuned … we will know tomorrow morning. I will do a quick “results” post, followed later by an analysis after I have had an opportunity to read the cases.