The Supreme Court has 14 cases left to decide from its 2012-2013 term, and a week in which to announce the decisions. So we know for sure (barring a truly extraordinary turn of events) that as early as tomorrow and certainly by a week from tomorrow, the world will know the outcomes in four blockbuster constitutional cases, as well as in several additional cases raising important constitutional or civil rights issues.
Is there any way to more accurately predict how they will turn out? Maybe.
The tell – to the extent there is one – lies in a process of elimination. The Court’s docket is divided into seven sittings, and the custom is that each Justice writes at least one majority opinion from each sitting. Reviewing the data on who has written from which sitting leads to what is probably a pretty good bet in at least one case.
Fisher v. University of Texas, the affirmative action case presenting the scary possibility of a major rollback in civil rights, is the only case from the October sitting that has not been decided, and Justice Kennedy is the only Justice who has not delivered an opinion of the Court from that sitting. Thus the operative question in Fisher does seem to be: How much harm will Kennedy (who has never voted to uphold an affirmative action plan) do?
From the February sitting, there are two outstanding cases and two Justices who have not authored opinions. The two cases are Shelby County v. Holder, the challenge to the pre-clearance requirement of the Voting Rights Act, and a case raising the issue of when arbitration agreements with class action waivers are enforceable. The two most likely authors are Chief Justice Roberts and Justice Scalia, making things look grim for the progressive position in both cases regardless of which Justice writes which decision.
On to the marriage cases – The bad news from the March sitting is that all four of the progressive Justices have already announced opinions from that batch of cases. There are three outstanding cases – Windsor, Perry and a pre-emption case – and three Justices who have not written: Chief Justice Roberts and Justices Kennedy and Alito. It has always seemed most likely that Justice Kennedy would write the Court’s opinion on the constitutionality of DoMA, and I would stick with that. But the Prop 8 case was much tougher to call, in part because it is saturated with procedural issues.
Given how the pattern looks now, though, my bet is that the Chief has taken for himself the job of untangling the questions of merits and standing in order to resolve Perry. As I have noted before, Perry‘s messiness presents the very real possibility that there will be no opinion of the Court, ie., no opinion signed by at least five Justices. Instead, the only way to dispose of the case may be for at least five Justices to reach the same outcome even if for wildly different reasons: a combination of opinions that find no standing by the Prop 8 proponents and that find Prop 8 to be unconstitutional, for example.
Note – This discussion concerns only opinions of the Court; I am not talking about concurring and dissenting opinions. Many observers have predicted, for example, that Justice Ginsburg would write an opinion in one of the marriage cases analyzing the equal protection issue as a variant of sex discrimination. She might well do so, but it appears unlikely to be an opinion commanding a majority of the Court.
But — For all of this, the usual caveat attaches: this is truly and only speculation. Don’t bet the ranch – or even one of the cows – on any of this.
Meanwhile, there are several other pending cases of interest to civil rights-oriented readers. Vance v. Ball State University raises questions of the scope of employer liability in harassment cases under Title VII. The process of elimination method suggests that it may be decided by Scalia, the only Justice not to have written an opinion from the sitting in which it was heard. In the most recent (April) sitting, predicting authorship seems not worth the effort, since too many cases remain outstanding to allow for anything more than guesses. Regardless, readers shouldn’t overlook the importance of several of these cases, including another Title VII lawsuit involving burden of proof questions, a challenge to the restrictions on AIDS prevention funding for overseas agencies that require explicit policies condemning sex work, and an Indian Child Welfare Act case involving the status of an unmarried non-custodial father in the context of adoption proceedings.