The U.S. Supreme Court is nearing the height of decision season — the two-month stretch of the term in which the lion’s share of decisions are released, particularly those of greatest public interest.
At this juncture of the year, limited inferences may be made as to which justice is writing which opinion, by studying the high court’s calendar.
As a general rule, each justice writes one opinion per sitting, which runs two weeks. This term, the Court has heard between nine and 12 cases per sitting, so several justices will have multiple assignments. As decisions from a particular sitting are released, observers can determine which member is likely writing which opinion, based on a straightforward process of elimination.
At the beginning of the term, the Court heard a challenge to the constitutionality of partisan gerrymandering — a longstanding practice in which incumbent lawmakers draw legislative district maps to the advantage of the party in power. The case, Gill v. Whitford, was argued in October 2017. Chief Justice John Roberts is the only member of the Court who has not written a decision from the October sitting, so it’s more than likely he has the Gill opinion.
The chief justice gives opinion assignments for all cases in which he is in the majority, and it’s not surprising he would assign such an important case to himself. Federal courts have never policed political gerrymanders before, and judicial review for partisan fairness would fundamentally alter the decennial redistricting process. Therefore, we should expect Roberts, the vaunted institutionalist eager to protect the integrity and authority of the Court, would want to set the justice’s trajectory on this consequential issue. (RELATED: In Slam Dunk For Business, Supreme Court Backs Forced Arbitration)
Still, it’s appears the Court is struggling mightily over the issue. During arguments at another gerrymandering case, Benisek v. Lamone, Justice Stephen Breyer raised the prospect of bundling all the Court’s partisan gerrymandering cases and setting them for re-argument during the Court’s next term, which begins in October. The proposal suggests the justices aren’t yet sure how to resolve these disputes.
Justice Elena Kagan seemed to confirm this reading of events in her questioning. In the Gill case, the map-challengers and their allies are proposing different metrics judges can use to identify and sanction impermissible partisan gerrymanders. The metrics they propose are disputed by other experts and met a chilly reception with a number of justices. During the Benisek argument, Kagan wondered if the Court could side-step this question, and simply announce the gerrymander at issue in the Benisek case was obviously too extreme.
Religious Liberty and Gay Rights
Masterpiece Cakeshop v. Colorado Civil Rights Commission was argued during the December 2017 sitting. The case was occasioned when an Evangelical baker, Jack Phillips, declined to create a custom wedding cake for a gay couple, Charlie Craig and David Mullins, given his deeply held religious beliefs about the nature of marriage. The dispute galvanized social conservatives, who are increasingly anxious about the rapid secularization of society, and the LGBT community, who say homophobia remains pervasive in the post-Obergefell world.
Two members of the Court have not written majority opinions from the December cases: Chief Justice Roberts and Justice Anthony Kennedy. (RELATED: Supremes Clear Way For Legalized Sports-Betting Across The Country)
It’s probably safe to assume Kennedy has the opinion in the Masterpiece case. Kennedy has almost single-handedly written the entirety of the Court’s LGBT rights jurisprudence, and the disposition of the case seemed firmly in his control during the December arguments. It’s difficult to know what Kennedy might be thinking. Though he forcefully condemned the state of Colorado for disparaging Phillips’ religious beliefs in earlier stages of the litigation, he also expressed concern a ruling for the baker would be received as an affront by the gay community.
Carpenter v. U.S. is a landmark Fourth Amendment dispute that asks whether law enforcement may collect historical cell-site location data without a warrant. Cell-site data is digital information generated when a mobile phone interfaces with a cell tower. Police agencies submit tens of thousands of requests for this data per year.
The decision implicates a major tenant of Fourth Amendment law called the third-party doctrine, which teaches that individuals have no privacy right in information they share with third-parties. Some observers have suggested the Court’s decision could do major work in developing a new paradigm of the Fourth Amendment for the modern period.
At argument, a majority of the Court seemed eager to extend protections to cell-site data, though the justices struggled to identify the outer boundaries of that protection — as well as the legal rationale on which they might rely.
Like Masterpiece Cakeshop, Carpenter was argued in December. If Kennedy has the Masterpiece opinion, Roberts is likely writing the Carpenter ruling. Just as Kennedy has written extensively in the gay rights area, the chief justice wrote an important cellphone privacy opinion in 2014, Riley v. California, which held that mobile devices seized during an arrest cannot be searched without a warrant.
A First Amendment challenge to mandatory union fees was heard in February, and the travel ban case was argued in April. There have not been enough opinions released from either of these sittings to make an informed guess as to who is writing these rulings.