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A Very Busy Home Stretch for the Supreme Court’s Conservatives
Chart courtesy of SCOTUS Blog's statistics team. Updated June 13.
With three opinions issued yesterday in fairly low-profile cases – two written by members of the Supreme Court’s progressive wing – the remaining weeks of the Court’s Term look increasingly busy for the conservative Justices. To see this point, you must understand two things about the Court.
First, the Justices generally try to divide authorship of majority opinions equally among them. And second, each Justice is usually assigned at least one majority opinion during each two-week period of oral arguments (also known as a “sitting”). While these aren’t ironclad rules, they work out regularly enough that one can often accurately predict the authors of future majority opinions based solely on a list of the Justices who have already authored majority opinions for a given sitting. With these rules in mind, here are the authorship statistics for this Term so far – thanks to the SCOTUSblog team for compiling them – and what they suggest about the Court’s still-pending cases.
Including the three opinions issued yesterday, the Court’s progressives (Justices Breyer, Ginsburg, Kagan, and Sotomayor) have authored 27 opinions so far this Term, while the Court’s conservatives (Chief Justice Roberts and Justices Alito, Scalia, and Thomas) have written only 19. Justice Kennedy – often described as the “swing” Justice in divided cases – has written only 4 opinions. Assuming that the typical practices apply and Justice Kennedy writes 4 more opinions this Term, the Court’s conservatives (excluding Justice Kennedy) will write roughly 14 of the remaining 23 rulings, while the progressives will write only 5. Working through these statistics sitting-by-sitting, Justice Kennedy and the Court’s conservatives stand ready to author some of the most important rulings of the Term.
Justice Kennedy is almost certainly writing the majority opinion in Fisher v. University of Texas at Austin – an important affirmative action case – as he’s the only Justice yet to author a majority opinion from the October sitting. Similarly, Chief Justice Roberts and Justice Scalia are the only two Justices who haven’t authored an opinion from the February sitting, meaning that one of them is likely writing Shelby County v. Holder (a blockbuster case addressing the constitutionality of a key section of the Voting Rights Act), while the other is the likely author in American Express Co. v. Italian Colors Restaurant (an important case for the business community dealing with class arbitration). Finally, with respect to the March sitting, when the marriage equality cases (Hollingsworth v. Perry and United States v. Windsor) and an important voting rights case involving Arizona’s controversial voter registration law (Arizona v. The Inter Tribal Council of Arizona) were argued, only Chief Justice Roberts and Justices Alito, Kennedy, and Scalia have yet to author majority opinions.
While it’s always treacherous to predict the Court’s future actions, given these authorship statistics, it appears to be a good bet that Justice Kennedy and the Court’s conservatives will have a major say over whether the Court remains faithful to the Constitution’s text and history in some of this Term’s most important cases.