What to Expect from the Supreme Court this Week

by: tmess2

Sat Jun 23, 2012 at 11:28:40 AM EDT

By Friday, the Supreme Court will have recessed for its three-month summer vacation (unless something very unexpected happens).  Between now and then, it has several significant decisions to make.  For those trying to figure out what will be happening this week (i.e. when they need to take a quick look at their favorite network news site or this site), here is what will happen as best as can currently be determined.

The Supreme Court will be in session on Monday at 10:00 a.m. EDT.  They have not yet announced any additional sessions for this week.  Normally, they would have announced such sessions by yesterday.  That does not mean that they will not announce on Monday that there will be an additional session, just that for now the omens are that Monday will be it.

The first order of business on Monday will be the announcement of the orders of the Supreme Court.  The orders are the weekly list of which cases they have accepted for argument and which cases they have turned down.  For the first three months of arguments in the next term (October, November, December), review has to be granted now to give the parties enough time to brief the case.  At this point, 20 cases have been granted argument for next term.  There are 32 argument spots in the first three months of next term.  While this Court has been historically stingy on granting review, a mere seven arguments per session (with seven sessions total) would probably set a modern record.  At the top of the list of possible grants out of Monday are the Bullock case out of Montana (a challenge by the Montana Supreme Court to Citizen's United) and the latest round of the Mount Soledad Monument case.

After the announcement of the orders, the announcement of decisions begins.  Decisions are announced by the Justice who issued the opinion (in rare cases by the Justice who wrote the plurlity opinion when there is no majority opinion).  This consists of the Justice reading a brief summary of the opinion.  If there is a dissent, the Justice who wrote the dissent has the option to read part of the dissent from the bench.

Decisions are read in the reverse order of seniority.  While we do not know for sure who has each of the remaining cases, there are two potential tea leaves. 

First, cases are assigned by the senior Justice in the majority.  (The Chief Justice is considered to be the most senior.)  For all practial purposes, that means that opinions are assigned by Chief Justice Roberts or Justice Scalia or Justice Kennedy.  (Technically, Justice Thomas or Justice Ginsburg could be the senior Justice in the majority, but this rarely happens.  In 2010, Justice Thomas was the senior Justice in one case).

Second, in assigning cases, the Justices responsible try to keep the workload balanced.   As a result, with most opinions decided, we can guess at who has the remaining opinions -- barring reassignment when a Justice loses the majority after the opinion was assigned.  (This may have happened to Justice Sotomayor in October when she was not the author of the majority opinion in any case but ended up concurring in the Judgment in Compucredit.)

First up would be Justice Kagan.  She is one of two Justices who did not have any cases in February yet.  My hunch (given comparative workload prior to February) is that is it slightly more probable that she was assigned Alvarez (the stolen valor case).  If so that case would be the first issued on Monday. 

The next Justice up would be Justice Sotomayor.  However, it looks unlike that Justice Sotomayor has any cases still outstanding.   

Next would be Justice Alito.  Depending on the results in Miller & Hobbs (and whether one opinon or two are issued), Justice Alito may have one (or both) of these cases.  (These are the cases about life without parole for juvenile murderers). 

Next up would be Justice Breyer.  If Miller & Hobbs favor the defendendants, he is the most likely Justice to have the two of them. 

Next up would be Justice Ginsburg.  Unless a miracle occurs and she has the health care cases or the immigration case, she will probably not have any opinions.

Next up would be Justice Thomas.  Justice Thomas was probably the initial judge on First American Financial (mortgage fee splitting) from December.  Given the age of that case, he may have lost the majority.

By this point, we are probably nearing 10:20 a.m. or later with the big two cases outstanding.

My hunch is that unless they split health care, there will not be any opinion by Justice Scalia.  If they do split health care, he might get the opinion holding that the Anti-tax Injunction does not apply.  If they do split health care, Roberts will probably get the individual mandate (and severability) and Kennedy will get medicaid.  In that case, I am clueless on who gets the immigration case.

If health care is not split, Justice Kennedy probably gets the immigration case, and the Chief Justice gets health care reform (either a 5-4 striking down the mandate or a 6-3 upholding it).

In either case, that announcement will probably be made close to 10:30 a.m. or whenever Justice Sotomayor finishes reading her dissent in the immigration cases.

The Supreme Court normally has the opinions on its website around 15 minutes after the opinion is released, but that site might be crashing often on Monday morning from the high traffic.   Scotusblog hosts a good live blog while the orders and opinions are being released.  As on Thursday, we will try to post what happens as soon as there is any news one way or the other (including the news that it has not been released if the Supreme Court does decide to go later into the week).