How to predict which Supreme Court Justice will write the remaining Supreme Court decisions
. . . 5 cases were decided on Monday, and another 3 today. That leaves 3 to go, and the Chief Justice announced this morning that they would be released tomorrow at 10:00 a.m. Eastern time. There is a biggie -- Sekhar v. United States, which considers whether advice from a government lawyer can be considered "property" that can form the basis of an extortion charge. And there are two cases that have garnered little attention -- United States v. Windsor and Hollingsworth v. Perry. Oh, wait. Those are the marriage cases!
It appears as though Justice Scalia may be writing the opinion in Sekhar, Justice Kennedy the opinion in Windsor (the constitutional challenge to the federal Defense of Marriage Act, DOMA), and the Chief Justice writing in Perry (the constitutional challenge to California's Proposition 8). This prediction is based on reviewing the authorship of the opinions that have already been released from each sitting of the Court and then lining up the remaining opinions with the Justices who have not yet authored an opinion from that sitting. For example, the only case argued all the way back in October that had not been released before this week was Fisher v. University of Texas, and the only Justice who had not authored an opinion out of the October sitting was Justice Kennedy. True to form, Justice Kennedy was the author of that opinion when it was released yesterday -- holding that Texas's race-based affirmative action plan has to be subjected to strict scrutiny by the lower courts and will therefore likely be held to be unconstitutional. (That, by the way, is not as far as we urged the Court to go in our brief in the case -- we'd like to see the promise of color-blind treatment for all citizens be fully vindicated -- but it is an important step in the right direction!).
Similarly, Justice Alito was the only Justice without an opinion from the January sitting, and Koontz v. St. Johns River Water Management District (another case in which the CCJ was involved!) was the only undecided case. This morning, Justice Alito was the author of the majority opinion inKoontz, an important property rights case holding that government cannot condition the issuance of a permit on the relinguishment of property rights that would be unconstitutional "takings" if done directly. Another win for the good guys, for property rights, and for the Constitution!
So the only case still undecided from April is Sekhar, and the only Justice without an opinion from that sitting is Justice Scalia. And the only two cases undecided from March are the two marriage cases, and the Chief Justice and Justice Kennedy are the two justices without an opinion from that sitting. . . .