Supreme Court Bingo: Which Supreme Court Justices Are Writing the Remaining Opinions?

The Supreme Court justices follow an informal protocol when assigning opinions to write to balance out the workload among all nine justices.  This means that near the end of the term, it is sometimes possible to predict which justices is writing a particular decision.  For example, if the justices heard 12 cases in a certain month, and all but one justice has authored opinions heard in that month, and there is only one decision from that sitting waiting to come down, we can predict with some certainty that the justice is the author of the unannounced decision.  At ADF, we call this “Supreme Court Bingo.”   There are some additional rules  and exceptions.  This is not at all an exact science, but provides fun for Supreme Court aficionados, especially when we are near the end of the term as we are now, and several big cases are soon to come down, like the Obamacare decision.

Right now, the Court has 10 decisions left to hand down for the term.  The Court is scheduled to hand down decisions on two more more days – Thursday June 21 and Monday, June 25.  I think it is unlikely that the Court will hand down all ten decisions in those two days, in light of past practice.  What I and many other Court watchers expect is for the Supreme Court to announce that it will add another day to hand down decisions.  I expect that day to be Wednesday, June 27 or Thursday June 28.  Because of the complexity of the legal issues involved in the Obamacare case, I would expect it to be handed down on the last day.  Whatever day that is, it will be before July 4.

So, I pulled out the Supreme Court Bingo card, entered the data we have now, and found that Supreme Court Bingo has little predictive power on the author of the opinion in many of the cases.  Here is what I can say on some of the final ten cases coming down:

Federal Communications Commission v. Fox TV (whether the FCC’s rules banning indecency on TV are too vague for free speech purposes) and  Knox v. SEIU (whether a union can force nonmembers to pay dues to fund union political activity without giving them an opportunity to opt out of paying for the political activity):   Both of these cases were argued in the January sitting.  The only firm prediction I will make is that Justice Alito is writing one of the two decisions.  He is the only justice who has not written a decision from the January sitting.

U.S. v. Alvarez (whether the federal law criminalizing false statements about receiving military honors, like the Medal of Honor, violates the freedom of speech).   This case challenging the constitutionality of the federal Stolen Valor Act is the last decision to come down from the February sitting.  Only Justices Kagan and Kennedy have not authored decisions from that sitting, so one of them is probably the author of the opinion.

Miller v. Alabama (whether a criminal sentence of life without parole to someone for a crime committed when he was 14 violates the 8th Amendment’s bar on cruel and unusual punishment).  This case is from the March sitting, and we can’t say who is writing this decision.  The Court heard seven cases in its March sitting, and four of them have not yet come down (including Obamacare).  Therefore, the predictive powers of Supreme Court Bingo  are unclear at this time.  Thomas and Ginsburg have written the two decisions from the March sitting, so any of the other seven could be writing this decision. (The third opinion from March was a per curiam opinion, which has no announced author).

Arizona v. U.S. (whether Arizona’s law on immigration is trumped by federal law).  Supreme Court Bingo at this time fails to give a prediction of the author of this decision.  The Court heard six cases in April, and two remain.  The justices who have not written decisions from cases argued in April are Roberts, Kennedy, Thomas, Ginsburg and Breyer.

U.S. Department of Health and Human Services v. Florida (Obamacare case) -  This gigantic amalgam of several cases with huge issues took an entire week of oral arguments at the Supreme Court.  The Supreme Court heard seven cases in March.  Three of those opinions have come down, one per curiam, and the other two were authored by Thomas and Ginsburg.  We may have a clearer picture of who is writing the Obamacare decision if the Court hands down the other three decisions from the March sitting on June 21 or June 25 AND the Court waits to hand down the Obamacare decision later in the last week of June.

Author: Jordan Lorence