SCOTUS 2022-2023 Term

[Skill and Chance]

With more decisions in (though not yet at the halfway point), I think we can start reading the tea leaves.

Roberts finally finished his first majority opinion this week and it was from the March sitting, a unanimous decision dealing with tax law. (Interestingly, there was a Jackson concurrence that Gorsuch joined.) He's likely saving some big ones for himself. I have no doubt he's saving the affirmative action cases for himself.

The October sitting has only two cases left (Clean Water Act and Section 2 of the VRA) and three Justices (Roberts, Thomas, and Alito) who haven't written. No chance for the left winning those cases. I can see Roberts taking either one for himself.

December has nine cases that include 303 Creative and Moore v. Harper. Assuming the latter isn't dismissed as moot, each Justice should be writing once. Roberts, Kagan, Gorsuch, and Kavanaugh have yet to write a majority opinion for that sitting.

That leaves the February sitting to discuss. With only six cases (really four when you consider the issues), the leaves aren't going to say much. The big one remaining is student loan forgiveness. We can likely rule out Thomas and Kavanaugh as they have both written for that sitting (I don't know how to count per curiam or if it does). In other words, it looks like we're not going to have much of an idea before the opinion is actually released. I have a feeling it's going to be either Roberts, Kagan, or Barrett. I'm worried about a Roberts opinion, thrilled about a Kagan opinion, and have no idea what to make of a Barrett opinion.

If I had to guess right now, I think Gorsuch has 303 Creative and either Roberts or Kavanaugh has Moore (probably the former, unless it's mooted by then). I am concerned how little Alito has written so far. I think he probably has the remaining January case due to his hatred of unions. The October cases offer no hope for the left.

Well, I was clearly wrong as to the outcome of the VRA case. I was expecting Roberts to write it, but with a very different outcome.

October and January are now done. Thomas did not write for October. For January, Roberts, Alito, and Sotomayor are left without opinions. Barrett ended up getting the union case from January. I still think Roberts likely has affirmative action, but I'm starting to think Kavanaugh is a possibility as well.

December has two major cases still remaining, 303 Creative and Moore. I still think Gorsuch has the former and Roberts either has or had Moore. I think the longer Moore takes the more likely it is to be decided on the merits.

As for the February sitting, all that remains is student loan forgiveness. Sotomayor got the last other opinion for that sitting. Based on other sittings, I don't think it's gonna be Barrett. Right now, I'm thinking the most likely are Roberts or Alito (with maybe a small chance for Kagan and an even smaller one for Barrett). Roberts writing would likely be very bad news, but not necessarily a certainty. Alito writing is probably the worst nightmare if you support forgiveness. Kagan would be very good news and Barrett is probably the biggest wildcard based on oral arguments.

I admit I've been spending way too much time looking at the SCOTUSblog stats page trying to think of possible permutations.

We had better hope Gorsuch doesn't have Moore on the merits, then.  That would be a disaster! 

[Skill and Chance]

With more decisions in (though not yet at the halfway point), I think we can start reading the tea leaves.

Roberts finally finished his first majority opinion this week and it was from the March sitting, a unanimous decision dealing with tax law. (Interestingly, there was a Jackson concurrence that Gorsuch joined.) He's likely saving some big ones for himself. I have no doubt he's saving the affirmative action cases for himself.

The October sitting has only two cases left (Clean Water Act and Section 2 of the VRA) and three Justices (Roberts, Thomas, and Alito) who haven't written. No chance for the left winning those cases. I can see Roberts taking either one for himself.

December has nine cases that include 303 Creative and Moore v. Harper. Assuming the latter isn't dismissed as moot, each Justice should be writing once. Roberts, Kagan, Gorsuch, and Kavanaugh have yet to write a majority opinion for that sitting.

That leaves the February sitting to discuss. With only six cases (really four when you consider the issues), the leaves aren't going to say much. The big one remaining is student loan forgiveness. We can likely rule out Thomas and Kavanaugh as they have both written for that sitting (I don't know how to count per curiam or if it does). In other words, it looks like we're not going to have much of an idea before the opinion is actually released. I have a feeling it's going to be either Roberts, Kagan, or Barrett. I'm worried about a Roberts opinion, thrilled about a Kagan opinion, and have no idea what to make of a Barrett opinion.

If I had to guess right now, I think Gorsuch has 303 Creative and either Roberts or Kavanaugh has Moore (probably the former, unless it's mooted by then). I am concerned how little Alito has written so far. I think he probably has the remaining January case due to his hatred of unions. The October cases offer no hope for the left.

Well, I was clearly wrong as to the outcome of the VRA case. I was expecting Roberts to write it, but with a very different outcome.

October and January are now done. Thomas did not write for October. For January, Roberts, Alito, and Sotomayor are left without opinions. Barrett ended up getting the union case from January. I still think Roberts likely has affirmative action, but I'm starting to think Kavanaugh is a possibility as well.

December has two major cases still remaining, 303 Creative and Moore. I still think Gorsuch has the former and Roberts either has or had Moore. I think the longer Moore takes the more likely it is to be decided on the merits.

As for the February sitting, all that remains is student loan forgiveness. Sotomayor got the last other opinion for that sitting. Based on other sittings, I don't think it's gonna be Barrett. Right now, I'm thinking the most likely are Roberts or Alito (with maybe a small chance for Kagan and an even smaller one for Barrett). Roberts writing would likely be very bad news, but not necessarily a certainty. Alito writing is probably the worst nightmare if you support forgiveness. Kagan would be very good news and Barrett is probably the biggest wildcard based on oral arguments.

I admit I've been spending way too much time looking at the SCOTUSblog stats page trying to think of possible permutations.

We had better hope Gorsuch doesn't have Moore on the merits, then.  That would be a disaster! 

I would guess with Moore it'll be either Roberts if he is in the majority, or either Thomas or Alito if Roberts is not in the Majority.

The most likely opinion in Moore will likely be something similar to what Roberts tried to do with Dobbs, interestingly enough, ruling for North Carolina, but explictly rejecting the Independent Legislature Theory. Both Thomas and Alito, who seem to only be on the court to pass the Republican platform, know that Independent Legislature Theory doesn't actually help Republicans, because it'll just lead to 26-0 New York Maps, and 55-0 California maps, and that's the minimum amount of damage it could do to Republicans.

Yes, Independent State Legislature Theory only clearly helps Republicans if it's paired with a ruling that the VRA no longer applies to redistricting.  Thankfully, we now know that the latter didn't happen. 

However, it's still a dangerous precedent to set and has the potential to make the country meaningfully less small d democratic in the long run, so I hope it's rejected.  Or, if not rejected outright, at least construed in a way that leaves any explicit state constitutional language on redistricting intact.  If it's a Roberts opinion, we probably get the latter.  He's extremely adverse to courts making new law based on general principles (as NC pretty clearly did), but very respectful of historical precedent.

[Skill and Chance]

We had better hope Gorsuch doesn't have Moore on the merits, then.  That would be a disaster!

I would be stunned beyond belief if Gorsuch has Moore on the merits. He hasn't written a major case this year yet and I think 303 Creative is exactly the kind of case he likes to write when in the majority. I suppose Kavanaugh is a possibility as well, but I think he probably has United States v. Texas (which leaves Kagan with the False Claims Act case).

I think Groff will be either Alito or Kavanaugh.

I would guess with Moore it'll be either Roberts if he is in the majority, or either Thomas or Alito if Roberts is not in the Majority.

The most likely opinion in Moore will likely be something similar to what Roberts tried to do with Dobbs, interestingly enough, ruling for North Carolina, but explictly rejecting the Independent Legislature Theory. Both Thomas and Alito, who seem to only be on the court to pass the Republican platform, know that Independent Legislature Theory doesn't actually help Republicans, because it'll just lead to 26-0 New York Maps, and 55-0 California maps, and that's the minimum amount of damage it could do to Republicans.

Thomas or Alito getting the opinion for Moore is very unlikely. There were nine cases heard in the December sitting and they've both written already. When I say that Roberts might have had Moore, I'm referring to the possibility that the case is mooted on account of recent action by the NC Supreme Court. There was a decision made in conference in December and someone was assigned the majority opinion. Whether we ever see that opinion remains to be seen. We also may be waiting on a dissent for whatever reason.

I don't share your thoughts about Thomas and Alito on this one. Thomas has very extreme views, but he's not a partisan hack. Alito is a partisan hack, but I still can't see him siding against the ISL theory.

I agree it's quite unlikely.  Gorsuch seemed the very most committed to ISLT of anyone on the court.  He didn't even seem totally sold on the governor's power to veto federal election laws.

[Skill and Chance]

👀

https://twitter.com/steve_vladeck/status/1669353159683366916

Who would be the most plausible 5th vote to deny standing in that case?  Barrett would make 4. 

[Skill and Chance]

I get the sense that Roberts is largely back in control after privately delivering a big dose of "I told you so" to Kavanaugh and Barrett sometime last winter.

[Skill and Chance]

👀

https://twitter.com/steve_vladeck/status/1669353159683366916
https://twitter.com/reichlinmelnick/status/1669354566406782979

Given past recent history in tribal cases, I'm surprised Gorsuch didn't have the majority opinion here.

It appears that he wanted to go further than the majority.

[Skill and Chance]

Kagan had the False Claims Act case from December, so I was right on that. That leaves 303 Creative, Moore, and United States v. Texas (an immigration case) with Roberts, Gorsuch, and Kavanaugh having not written for that sitting. My prediction for that month has only been reinforced.

Gorsuch would have upheld ICWA on everything, yes, but more fundamentally he wants to revise some of the foundation of federal Indian law as it exists today. The concurrence offers him space to do it in a way he can't in a maj op (part of the concurrence is, without saying as much, relitigating Castro-Huerta, a Kavanaugh op in which Gorsuch vehemently dissented).

Indian law today, for instance, is premised on the idea that Congress can pass whatever laws it wants to govern the Indian tribes (including e.g. ICWA). Gorsuch, by contrast, doesn't think this exists — he reads "plenary" to mean "exclusive" (so states, contra Castro-Huerta, would lack any power over tribes), but not to mean "absolute." He thinks there are hard-coded limits in the Constitution w/r/t how far Congress can go in legislating over tribes — that, in other words, the Constitution forbids Congress from, say, terminating the federal recognition of particular tribes or stripping them of their criminal jurisdiction over non-Indian criminal offenders (both things Congress has done by statute). A lot of this is, notably, in the big baller part of the opinion that Sotomayor & Jackson did not join.

One thing to note about that is the fact that Gorsuch's majority in McGirt was lost when Ginsburg was succeeded by Barrett. The Court didn't use Castro-Huerta to directly overturn it, but it was significantly gutted. (In other words, a pretty classic Kavanaugh decision.) McGirt was a big one for Gorsuch, so his dissent two years later was perfectly understandable.

So 303 Creative is almost surely a conservative win no matter which of those 3 writes it.

Nebraska could still be Kav as the 5th vote to deny standing, but it's an obvious loss for the federal government with the other 2.

I don't know as much about US v. Texas.

[Skill and Chance]

So 303 Creative is almost surely a conservative win no matter which of those 3 writes it.

Nebraska could still be Kav as the 5th vote to deny standing, but it's an obvious loss for the federal government with the other 2.

I don't know as much about US v. Texas.

It doesn't have to be a conservative win in 303 Creative just because a conservative is writing. Bostock was quite the surprise. But, you're probably right though. I think it's possible it could have been a conservative win even with Kennedy as the median Justice, though perhaps more tempered down than whatever we presumably might get.

Kavanaugh won't be writing Nebraska. He's already written for February. I do agree that Roberts is likely bad news, but it's not the certainty it would be if it's Alito.

Here's some info on United States v. Texas written after oral arguments.

Not necessarily. The plaintiff very clearly lacks standing, so it could very well be a 7-2 (Alito and Thomas dissent) ruling.

I don't think the Court even touched the standing issue in that case. I still think it's Gorsuch with the majority opinion.

IDK, remember the "reeducation program" comments from Gorsuch during oral arguments.   That's a pretty clear sign the side of a case arguing for broader LGBTQ rights won't be able to count to 5.

[Skill and Chance]

IDK, remember the "reeducation program" comments from Gorsuch during oral arguments.   That's a pretty clear sign the side of a case arguing for broader LGBTQ rights won't be able to count to 5.

Bostock v. Clayton County would like a word.

The person who wrote Bostock was the one lashing out against the attorneys defending Colorado's side of the case.

[Skill and Chance]

https://twitter.com/steve_vladeck/status/1669353159683366916
https://twitter.com/reichlinmelnick/status/1669354566406782979

Given past recent history in tribal cases, I'm surprised Gorsuch didn't have the majority opinion here.

It appears that he wanted to go further than the majority.

He did. He would have upheld the ICWA on the merits on everything; ACB upheld on the merits on some arguments and tossed the rest of the anti-ICWA arguments on standing.

I agree that Kav is the likeliest fifth vote to toss the student loans case on standing because in two prominent cases that have just come down, Brackeen and the VRA one, he wrote concurrences whining about whoever was arguing for the "right-wing" position not bringing up what he thought were the correct arguments (which he TOTALLY would have found for, HONEST!). It seems possible he does so again in Biden v. Nebraska.

ACB, Roberts, and Kagan are the three justices who joined the Brackeen majority but not either of the concurrences.

At least on the VRA stuff, we're going to learn just how HONEST Kavanaugh was in the extremely near future; there's another case with an extremely similar fact-pattern -- NAACP v. McMaster -- over whether South Carolina's districts are also a violation of the VRA. That case is going to be heard by the Supreme Court next term, and it's actually sort of conspicuous that it was not consolidated with the Alabama proceedings. Obviously South Carolina's lawyers are going to make the arguments Kavanaugh asked for.

Kavanaugh's exact position is possible to read in two ways, though, one very moderate and one Thomas-level hyper-conservative. Kavanaugh complained that Alabama had not brought up the possibility that, since the VRA was first permitted under the remedial/preventative authority of the Fourteenth and Fifteenth Amendments, it cannot remain constitutional forever:

JUSTICE THOMAS notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 44–45 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.

The shout-out to Thomas reads like he would strike down the VRA if only someone would make this argument. (And someone making this argument isn't some hypothetical scenario; someone will be making it next term. Also, Kavanaugh thinks the Court should grant certiorari in way more cases, and work way harder, than it currently does; it feels sort of strange to accuse him of coyly ducking from the real issues when he thinks the Court should hear way more cases. It rather seems like he actually wants certain broadly-extendable principles applied to a variety of cases.)

(The other way to read what Kavanaugh said is that he might want to channel O'Connor in Grutter and put a rough date on when the VRA will be unconstitutional...but kick the can down the road so that he doesn't personally need to take responsibility. O'Connor famously wrote in 2003 that affirmative action was still permissible at that point, but would probably no longer be constitutional by 2028.)

I would think it's almost certainly the latter approach, or else he would have just taken this opportunity (or, I believe, one of several others in recent years) to rule that all/most of the VRA is unconstitutional.  If he thinks the time limit has already expired, why make Alabama jump through hoops just to strike the whole thing down next year or the year after?  He could have been the 5th vote for any interpretation of the relevant VRA language he wanted right now.  Alito and Thomas are both in their 70's and could get sick at any time while he waits. 

The VRA's already going on 60 years old and Kavanaugh just voted to enforce it as written.  If he turns around and puts a time limit on it now, I think it would intentionally be something beyond his likely tenure on the court.  Check back in 2065/82?

[Skill and Chance]

Everything released today was pretty in the legal weeds, it looks like. 

Kavanaugh having 2 more opinions from after the new year that aren't Biden v. Nebraska is probably a bad sign for federal student loan borrowers.

[Skill and Chance]

Yet another banger today from the pen of one Neil McGill Gorsuch:

All of which leaves the Navajo in a familiar spot. As they did at Bosque Redondo, they must again fight for themselves to secure their homeland and all that must necessarily come with it. Perhaps here, as there, some measure of justice will prevail in the end.

Twenty-six page dissent to a thirteen page majority.

Holy crap

[Skill and Chance]

Thomas is almost certainly not writing affirmative action then (which was a fairly safe bet anyway).

Everything released today was pretty in the legal weeds, it looks like. 

Kavanaugh having 2 more opinions from after the new year that aren't Biden v. Nebraska is probably a bad sign for federal student loan borrowers.

I never thought Kavanaugh was likely on account of him already writing for February. He was always going to have opinions for March and April. If the affirmative action cases are merged, someone will be left out there. Roberts, Alito, and Kavanaugh have yet to write for November and all that remains are the two affirmative actions and another lower profile case. It's unnerving how few opinions we have from Roberts and especially Alito.

Anyway, same time tomorrow everyone.

I suspect Alito has affirmative action with a maximalist ruling that reads like a Chris Rufo speech and prohibits practically any DEI inititiatives in universities accepting federal funds: 1. probably some internal horse trading with Roberts and Kav over Milligan and 2.  I wonder if Jackson being recused here gives him  somewhat more latitude, but the circuit court upheld the status quo, so maybe not? 

[Skill and Chance]

Four more decisions handed down.

Kavanaugh had two decisions in March, so he hit seven today. He's almost certainly done for the term. As I suspected, he had United States v. Texas for the December sitting. That leaves 303 Creative and Moore with only Roberts and Gorsuch having not written. My predictions there have not changed.

With Kavanaugh likely done, that means he likely won't be writing for November. That means affirmative action will be either Roberts or Alito.

With so few decisions from Roberts or Alito, I'm thinking Roberts is most likely writing the student loan case. The next most likely looks like it might be Alito. Anyone else would honestly surprise me at this point.

Next opinion day is Tuesday.

My understanding is that there were 5 votes for a very narrow understanding of state standing in the Texas immigration case just now (R+K+liberals), in a way that would further move the needle toward the student loan case being dismissed for lack of standing?

[Skill and Chance]

If SCOTUS throws out the student loan case and the $10/20K forgiveness goes into effect, could the forgiveness be reversed and the debts be "reinstated" by a future legal challenge next term or later/

[Skill and Chance]

Peak "SCOTUS 2022-2023 Term" would be the Court throwing out the student loan case on standing grounds, but Kavanaugh writing a concurrence in which he explains exactly how the case could've been brought before the Court correctly, and then that case being brought next summer.

Peak "MOGOP is a bunch of dumbasses" would be a requirement that MOHELA bring the case rather than the state of Missouri, leading to the Missouri GOP trying to appoint loyalists to random MOHELA positions and then failing because this is exactly the sort of inside baseball they're still comically bad at.

In oral arguments, SG Prelogar already said they wouldn't have contested standing if MOHELA was there in its own name. You don't need the Court to say that, although they certainly could.

OK, true "peak SCOTUS 2022-2023 Term" would be Kavanaugh as the decisive vote to strike down student loan forgiveness, but explaining in a concurrence exactly which arguments Prelogar could've made to get the case thrown out on standing grounds.

You were probably right the first time, except that if it's upheld on standing I don't think it'll be back next year.


To continue the topic, SCOTUS seemed to scramble the decisions. Gorsuch got a second opinion in November. I'm now far less sure he has 303 Creative. I wonder it Alito has it now. I'm 99% sure he has Groff though. Maybe affirmative action really will be split.

Yes, this opens up the possibility of 303 Creative being much more aggressive now. 

[Skill and Chance]

So now we can look forward to having no policing or fire services on Sundays going forward?

No, but a reasonable interpretation might be something along the lines of "anyone in a position that didn't have to continue working in March of 2020 who can show a sincere religious objection cannot be obligated to work on a holy day of their religion"?

[Skill and Chance]

[quote[i][/i] author=soundchaser link=topic=540767.msg9118754#msg9118754 date=1688047344 uid=20823]
Alito has both Abitron and Groff. Could Sotomayor have Nebraska???
[/quote]

Well, if it’s liberals +Kavanaugh and Barrett to denying standing, she be the most senior.

[Skill and Chance]

Between the awful 303 Creative and student loan decisions… it’s clear that this Court has no legitimacy. The plaintiffs had no standing. This is a rogue court.

The student loan decisions are, like, overwhelmingly popular. I don't think the Supreme Court's legitimacy comes from always doing what the public wants -- in that case it could never have legalized interracial marriage -- but these decisions are both pretty obviously on the right side of a huge majority of public opinion if you take even a cursory look at it.

Lol, that poll from Cato is laughably bad.

The topline question actually says that 64% of respondents support student loan forgiveness.

It's only when you add those disingenuous tradeoffs (it will raise your taxes, it will raise tution) does it show that people oppose it.

These points are...obviously correct? Like does the Biden Administration even dispute them?

Nice try, though!

Well, also, these poll results fit in a context where Democratic Party operatives think it is unpopular, where the CNN poll also shows that even partial forgiveness for those most in need -- a policy much more limited than Biden's -- tends to run behind normal Democratic vote-share.

Also, you can't ignore broader societal context. People vote in referendums against universal health-care all the time, and when elections are polarized on that issue MA and CA are very close, but polls think there is a slight national majority in its favor. Spending increases basically always poll better than they perform in referendums. You need to have a picture of the electorate in order to poll well, and these pictures are always informed by conventional wisdom, and there is a general reluctance to admit that ideological fiscal conservatism is close to as popular as it actually is (which, taking in all the evidence, is a fairly strong national majority).

But regardless, like you said, the Supreme Court's legitimacy doesn't come from public opinion.

Can you defend the Court's decision on constitutional merit alone?

Yes. The HEROES Act which Biden attempted to use to justify the cancellation did not actually permit anything of the sort. It is meant to provide much more limited relief to the victims of wars and natural disasters, of a type which COVID was clearly not, since there wasn't regional immiseration. (The relevant canon of construction here is noscitur a sociis; words that are part of a list are to be interpreted with reference to the other terms in a list. The Republican Senator who wrote it is still in Congress and opposed Biden's plan, although I don't think she spoke about the constitutional issues in question.

How bad would the natural disaster have to be to qualify, then?  Is there any scale for gauging that?

Suppose that the February 2021 Texas blackout had reached the critical level where the entire grid was fried and the entire state would be without power until the summer.  Would a several month power outage with basically a return to 19th century economic conditions qualify?

Could a pandemic meet that standard at all?  If (God forbid) COVID had >50% mortality like the Black Death, and workplaces closed because entire teams died at the same time, would it have qualified?

At a minimum, I presume wiping out the student loan debt of people drafted into a congressionally declared war would be legitimate?