The Supreme Court issued nine opinions in two days this week as the justices work to finish up October Term 2023. The justices have decided forty-seven cases thus far, with fourteen left to go (though these fourteen may be decided in as few as twelve opinions). Wednesday, June 26 will be the next opinion day. If the justices are ready to issue four or five opinions per day, they could meet the traditional-if-informal deadline of ending their work before July.

As I have noted before, the justices have shown a surprising degree of unanimity thus far this term. (See also this post by Adam Feldman at Empirical SCOTUS.) The Court has been unanimous in the judgment in 55 percent of the cases decided this term. Note, however, that in some of these cases the justices have diverged sharply in their reasoning, and not all of those cases featured a unanimous opinion for the Court. Today's opinion in Smith v. Arizona is a case in point, as are Trump v. Anderson and Vidal v. Elster. Given the cases left for the justices to decide, the overall proportion of unanimous decisions is likely to drop.

Among those cases that were not unanimous, two were 8-1, three were 7-2, thirteen were 6-3, and three were 5-4. Of note, only five of the Court's 6-3 decisions thus far this term divided the justices along traditional ideological lines. Some of those cases have also featured quite surprising line-ups, such as today's decision in Erlinger v. United States, in which Justice Gorsuch wrote for the Court, joined by the Chief Justice and Justices Thomas, Sotomayor, Kagan, and Barrett, while Justices Alito, Kavanaugh and Jackson dissented.

In terms of individual opinion authorship, here is where we stand.

• Sotomayor: 7
• Thomas: 7
• Kagan: 6
• Kavanaugh: 5
• Jackson: 5
• Alito: 4
• Barrett: 4
• CJ Roberts: 3
• Gorsuch: 3

There have also been three per curiam opinions, and some cases are likely to be merged into a single opinion (e.g. the two Chevron cases, Relentless and Loper-Bright will almost certainly be decided in a single opinion; we'll see if that happens with the two NetChoice cases).

Thus far this term, the "liberal" justices have written thirty-eight percent of the opinions for the Court, despite representing only one-third of the Court. This leads me to think we will few (if any) additional decisions authored by Justices Sotomayor, Kagan, or Jackson—though I think one more Jackson opinion is likely.

Now, for what you've all been waiting for, my purely speculative predictions for what we may see for the balance of the term.

• SEC v. Jarkesy—Gorsuch
• Purdue Pharma—Roberts
• Loper Bright/Relentless—Roberts
• Corner Post—Gorsuch
• Ohio v. EPA– Barrett (a change from prior prediction of Kavanaugh)
• NetChoice—Alito (though likely a splintered mess across the two cases)
• Murthy—Barrett (a change from prior prediction of Gorsuch)
• Snyder—Jackson
• Fischer—Gorsuch
• Grants Pass—Alito
• Moyle v. U.S.—Kavanaugh
• Trump v. U.S. – Roberts

As always, these predictions are worth no more than you paid for them, though I will note that I correctly called Rahimi, Texas v. New Mexico and Smith but not Erlinger.

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Today the Supreme Court issued three more opinions, bringing the total number of decisions to 29 so far this term (out of 61 argued cases). This is a slower pace than usual for the Court, despite the smaller docket, but on par with what we saw last term.

Here is the number of opinions issued by the end of May this year as compared with the total in each of the prior five terms:

• OT2023—29
• OT2022—29
• OT2021—33
• OT2020—39
• OT2019—36
• OT2018—44

The relative slowdown is noticeable. What's the cause? One possibility is that whatever processes the Court adopted in the wake of the Dobbs leak have slowed down the Court's work. Another possibility is that the remaining cases are sufficiently difficult or divisive that they are taking more time to complete. Whatever the cause, the Court will have to average a decision a day to finish its work by the end of June.

While the Court has been relatively slow to issue opinions, it is showing a surprising degree of unanimity. The justices have been unanimous in the judgment in 20 of the 29 cases decided thus far, including today's unanimous decision by Justice Sotomayor in NRA v. Vullo, siding with the National Rifle Association against New York financial regulators. Of the remaining nine cases, two were decided 7-2 and seven were decided 6-3. Of potential interest, only three of the 6-3 decisions issued thus far split the Court along traditional conservative-liberal lines. In two of those three cases the majority was written by Justice Alito (Thornell, Alexander). Justice Kavanaugh wrote the opinion in the third (Culley).

There are good reasons to think that the Court's will be less unanimous—and perhaps more conservative—than what we have seen so far this term, and not just because the Court tends to issue the most controversial and politically divisive decisions at the end of the term. So far this term, the liberal justices have authored a disproportionate share of the Court's opinions (thirteen of twenty-seven signed opinions), despite representing only one third of the Court. Based on what we have seen thus far, the Court's liberals are likely to have relatively few of the remaining majority opinions.

In terms of individual opinion authorship, here is where we stand.

• Sotomayor: 6
• Kagan: 4
• Alito: 3
• Kavanaugh: 3
• Barrett: 3
• Jackson: 3
• Thomas: 2
• Gorsuch: 2
• CJ Roberts: 1

There have also been two per curiam opinions, and some cases are likely to be merged into a single opinion (e.g. the two Chevron cases, Relentless and Loper-Bright will almost certainly be decided in a single opinion).

Given that the Court heard argument in 61 cases, each justice will only have six or seven decisions, so Justice Sotomayor may be done with writing majority opinions this term, and Kagan and Jackson may only a few each left. Of the thirty-ish opinions to come, I think we can expect over two-thirds of them to be written by one of the Court's conservatives. The Chief Justice in particular has been holding his powder dry, having only taken one decision for himself thus far. Do not be surprised if he writes for the Court in both the Trump immunity case and the Chevron cases.

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CNN's Joan Biskupic offers a preview of some of what's contained in retired Judge David Tatel's forthcoming book, Vision: A Memoir of Blindness and Justice. Judge Tatel was appointed to the U.S. Court of Appeals for the D.C. Circuit by President Bill Clinton, and was a highly regarded member of that court for nearly three decades. Had Al Gore been elected President in 2000, some believe he would have nominated Judge Tatel to the Supreme Court if given the opportunity.

According to Biskupic, Tatel echoes the common (and incorrect) complaint that the Roberts Court has been less respectful of precedent than prior courts. She reports that Tatel charges that the Roberts Court "has 'kicked precedent to the curb' and become 'a tragedy' for civil rights and the rule of law." Assuming that Biskupic's report is accurate (as the book has not yet been released) it is a shame to see Judge Tatel repeat this claim about the Roberts Court and precedent because, as I have shown, the Roberts Court has actually been less prone to overturn precedent than prior courts.  It is one thing to criticize the substance of the Roberts Court's decisions. It is quite different to make demonstrably false claims about the nature of the Court's decisions.

Biskupic's story also confirms what many have long suspected about the Supreme Court's decision in NAMUDNO v. Holder, concerning the Voting Rights Act.

In his book, Tatel wrote that Ginsburg told him about the behind-the-scenes dealings in a 2009 case, known as Northwest Austin v. Holder, that was the forerunner to Shelby County. The 2009 case left the VRA's Section 5 intact, although its reasoning laid the groundwork for future obliteration. (Tatel had authored the lower court opinions in both Northwest Austin and Shelby County.)

When the Supreme Court ruled in 2009, Tatel said, "What I couldn't figure out was why the four liberal justices had joined the Chief's majority opinion. … (T)he unnecessary and irrelevant jabs at Section 5's constitutionality? Why had they gone along with that part of the Chief 's opinion? I suspected I knew the answer, and Justice Ginsburg herself later confirmed my suspicions."

"The justices had initially voted 5–4 to declare Section 5 unconstitutional, but they later worked out a compromise: The majority agreed to sidestep the big question about Section 5's constitutionality, and the would-be dissenters agreed … to sign on to the critique of Section 5," the judge wrote. "With that compromise, the liberal justices had bought Congress time to salvage the keystone of the Civil Rights Movement."

Congress never acted, and Tatel contends the 2009 compromise cost the liberals: "They sure paid a high price: an unrebutted opinion that criticized the VRA and, worse, endorsed a new 'equal sovereignty' doctrine with potentially profound implications," Tatel wrote of the principle that restricted Congress' ability to single out certain states, in this situation because of past discriminatory practices. "The Court's opinion in Northwest Austin thus planted the seeds for Section 5's destruction."

It is certainly true that the NAMUDNO decision "planted the seeds" for the Shelby County holding, in that it flagged the constitutional concerns that underlay the Shelby County decision. But according to this account, there would have been five votes to invalidate Section 5 either way. Thus what NAMUDNO actually accomplished (as some of us have pointed out before) was to give Congress the opportunity to revise Section 5 (and, specifically, to update the statute's obsolete coverage formula) so as to preserve its constitutionality. In other words, a majority of the Court was willing to stay its hand, and refrain from invalidating a federal statute, in the interest of deferring to Congress. That Congress did not avail itself of the opportunity, is not the fault of the Court.

The Biskupic story notes other tidbits from the book, such as how Justice Ginsburg resented the pressure to retire under a Democratic president, and suggests that RBG's death during the Trump Administration likely encouraged Judge Tatel to retire soon after Joseph Biden took office. This Adam Liptak interview with Tatel suggests much the same:

Judge Tatel said his retirement was linked to a lesson he drew from Justice Ruth Bader Ginsburg's decision to remain on the bench despite calls for her to step down in time to let President Barack Obama name her successor.

"We had dinner here at this table several times," he said. In the book, he described "her annoyance with commentators who were calling for her retirement."

Justice Ginsburg's contributions to the law will endure, he said. "But there's no denying," he wrote, "that her death in office ultimately contributed to Roe's downfall," with Justice Amy Coney Barrett — rushed onto the court by President Donald J. Trump and Senate Republicans — casting the decisive vote to eliminate the constitutional right to abortion.

Judge Tatel, now 82, wrote that he had stepped down because he "didn't want to take the chance that my seat might be filled by a president who'd campaigned on picking judges who would fulfill his campaign promises."

But there was more. "I was also tired," he wrote, "of having my work reviewed by a Supreme Court that seemed to hold in such low regard the principles to which I've dedicated my life."

I look forward to reading the book when it is released.

The post Judge David Tatel on the Roberts Court, the Voting Rights Act, and the Notorious RBG appeared first on Reason.com.

Just as Justice Kavanaugh spoke to the Fifth Circuit Judicial Conference today, Justice Thomas spoke to the Eleventh Circuit Judicial Conference. (Justices commonly speak at the judicial conference for the circuit for which they are circuit justice.) As with Justice Kavanaugh's remarks, press was in attendance, but the reporting on Justice Thomas's remarks focused more on the sorts of things political reporters care about (his comments about the culture of Washington, DC) than those things that actually provide information on the functioning and potential future direction of the Court. (In this way, the reporting confirms comments about court coverage Sarah Isgur made at today's lunch at the Eleventh Circuit conference.)

For those who care about law and the courts, the most interesting aspect of Justice Thomas's remarks may have been his comments about the "expedited docket"—or what many people call the "shadow docket." Like Justice Kavanaugh, Justice Thomas expressed concerns about the pressure the increase in expedited filings place on the Court. Emergency filings seeking relief from extraordinary relief (such as when district courts issue national injunctions) "short circuit our process," Justice Thomas remarked, adding "The way we're doing it now is not a thorough way" of doing it.

Justice Thomas further noted that such filings have increased because advocates are getting more aggressive and clever in pursuing such legal strategies, putting the court on a compressed schedule, and lower courts are issuing more national injunctions. The latter, Justice Thomas remarked, are something the Court will "have to address."

Justice Thomas also echoed Justice Kavanaugh's approval of the new oral argument process. The new format, which combines traditional open questioning with seriatim questioning by seniority, is "more thorough" and "polite," even if it means arguments last longer.

Among some of the other tidbits from his remarks that may be overlooked, Justice Thomas said that the Court's composition after Justice Breyer was confirmed—and which remained stable for over a decade—was his "favorite court." That Court, Justice Thomas said, was like a family. It "may have been a dysfunctional family" but it was a family, he said. Something like the leak of the Dobbs opinion draft would have been "unthinkable" during that time.

Justice Thomas also praised Justice Sandra Day O'Connor, saying she deserves far more credit than she gets, and repeated concerns that a Court in which eight of nine justices attended the same two elite law schools does not "reflect the country." He also explained why he tries to make his judicial opinions clear and understandable to non-lawyers.  It was also noted that in four years Justice Thomas will be the longest-serving justice in the Court's history.

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Justice Brett Kavanagh spoke at the Fifth Circuit Judicial Conference in Austin, Texas today. According to a Bloomberg report, he discussed the "pressure" created by emergency filings, including appeals of nationwide injunctions or other extraordinary relief entered by lower courts. From a Bloomberg report:

Speaking Friday in Austin, Texas, Kavanaugh lamented the strain the expedited timeline places on the justices and said it leads to decreased output in other areas.

"This puts pressure on us," he said during remarks at a US Circuit Court of Appeals for the Fifth Circuit conference. "We're appellate judges; we don't like making snap decisions or decisions without lots of briefs or lots of lower court opinions. It's a challenge for us. I think we're dealing with it as best as we can in an imperfect situation."

Kavanaugh, in response to a question from moderator Fifth Circuit Chief Judge Priscilla Richman, said that in order to decide emergency issues the court must "take a peek at the merits, and that's really hard." This becomes circular, he said, "because we're going to decide the merits a couple of years from now." . . .

Resolving issues on the emergency docket is keeping the court from writing more opinions in merits cases, Kavanaugh said. . . .

"It occupies a lot of time," he said.

It is interesting that he made these remarks at the Fifth Circuit judicial conference, as the Fifth Circuit has been responsible for more than its fair share of "shadow docket" filings.

Justice Kavanaugh also indicated that he thinks the Supreme Court should hear more cases—more like 75 per term instead of 60. As I have noted on this blog, Justice Kavanaugh often votes to grant certiorari in cases the Court ultimately denies.

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Federal judges will be limited from enhancing defendants' sentences based on conduct a jury acquitted them of, a practice that has drawn condemnation from a wide range of civil liberties groups, lawmakers, and jurists.

The U.S. Sentencing Commission, a bipartisan panel that creates guidelines for the federal judiciary, voted unanimously Wednesday to adopt an amendment prohibiting judges from using acquitted conduct when calculating a defendant's sentencing range under those guidelines. The only exception is if the conduct "also establishes, in whole or in part, the instant offense of conviction."

"Not guilty means not guilty," U.S. District Judge Carlton W. Reeves, the chair of the Sentencing Commission, said in a press release. "By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system."

Although it sounds antithetical to what everyone is taught about the American justice system, at the sentencing phase of a trial, federal judges could enhance defendants' sentences for conduct they were acquitted of if the judge decided it was more likely than not—a lower standard of evidence than "beyond a reasonable doubt"—that the defendant committed those offenses. This raised defendants' scores under the federal sentencing guidelines, leading to significantly longer prison sentences.

For example, Reason's Billy Binion reported on the case of Dayonta McClinton, who was charged with robbing a CVS pharmacy in Indiana at gunpoint and killing one of his accomplices during a dispute after the robbery. A jury convicted McClinton of robbing the pharmacy but acquitted him of killing his accomplice. A federal judge nevertheless used the accomplice's death to enhance McClinton's sentence from the 57–71 months recommended under the guidelines to 228 months.

McClinton filed a petition to the Supreme Court challenging the use of acquitted conduct at his sentencing, but despite several Supreme Court justices previously expressing doubt about the constitutionality of the practice—including Justices Brett Kavanaugh and Clarence Thomas—the Court declined to take up the case last June. Reuters reported that four of the justices signaled they would defer to the Sentencing Commission.

The Justice Department opposed a previous proposal by the Sentencing Commission to limit the use of acquitted conduct.

"Curtailing courts' discretion to consider conduct related to acquitted counts would be a significant departure from long-standing sentencing practice, Supreme Court precedent and the principles of our guidelines," Jessica Aber, the U.S. attorney for the Eastern District of Virginia, testified before the Commission last February.

The Justice Department declined to comment on the new policy.

The practice also outraged members of Congress. For the past several years, Sens. Chuck Grassley (R–Iowa) and Dick Durbin (D–Ill.) have introduced legislation to ban the use of acquitted conduct at sentencing in federal trials, but so far none have passed.

In a statement today, Durbin continued to call for the passage of his and Grassley's Prohibiting Punishment of Acquitted Conduct Act, saying "this unjust practice must be prohibited under federal law."

"Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt," Durbin said. "However, federal law inexplicably allows judges to override a jury verdict of 'not guilty' by sentencing defendants based on acquitted conduct. This practice is inconsistent with the Constitution's guarantees of due process and the right to a jury trial. That's why I applaud the Sentencing Commission's important step to limit the use of acquitted conduct."

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In several recent posts I have noted that Justice Kavanaugh appears to want the Supreme Court to hear a significant number of cases that his colleagues do not. We know this because the Supreme Court's order lists often note that he would have granted certiorari in a case that was denied.

Today we see another example of this. Among the cases in which the Court denied certiorari on today's order list is South Carolina State Ports Authority v. National Labor Relations Board. In addition to noting that certiorari was denied, the order list also notes that Justice Kavanaugh would have granted the petition.

This case presented the following interesting questions:

1. Whether a union's unlawful secondary boycott is shielded by the work-preservation defense because the targeted secondary employer could choose to take its business elsewhere and, in that way, can "control" the primary employer's work assignments.

2. Whether a union's unlawful secondary boycott is shielded by the work-preservation defense even when no bargaining unit jobs are threatened.

While I find these questions interesting, it does not appear that four justices found them to be worthy of certiorari.

While he appears to want the Court to hear more cases, Justice Kavanaugh did not join Justice Alito's dissent from denial of certiorari in Coalition for TJ v. Fairfax County School Board, a case concerning the extent to which school districts may consider race (or proxies for race) in school assignment decisions.  (My co-blogger Ilya Somin blogged about the lower court's decision here.)

What this may suggest is that while Justice Kavanaugh wants to hear more cases that raise questions of significance to the business community or regulatory matters, including cases involving patents, tort litigation and labor law, he is not as keen to hear cases implicating culture war flashpoints, such as race.

An important qualification to note here is that justices are not required to disclose when they would have granted certiorari in a given case. So while we know at least some cases in which Justice Kavanaugh would have granted certiorari, we do not know how his colleagues voted in these cases, or whether there are other cases in which Justice Kavanaugh would have supported certiorari, but chose not to disclose that fact.

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