SCOTUS 2022-2023 Term

[politicallefty]

I thought this could be a thread to discuss the current Supreme Court term, particularly cases that fly under the radar that might interest people here.


I was inspired by the decision just released in Bittner v. United States. It's a rather dry case at first glance, involving the Bank Secrecy Act. The law involves a penalty for non-willful failure to file an annual form. The penalty is $10,000. The majority ruled that the statute be read as $10,000 per (annual) report. The dissent argued that the $10,000 penalty was per account. So, if one had 272 foreign accounts, one can do the math.

I was most intrigued by the breakdown in this case. The decision was written by Justice Gorusch and joined by Justice Jackson in full. All but one part was joined by Roberts, Alito, and Kavanaugh. The dissent was written by Justice Barrett, joined by Thomas, Sotomayor, and Kagan.

That's a very strange breakdown, to say the least. The part that Justice Jackson joined and the others did not involved the rule of lenity. It's not the first time I've seen Justice Gorsuch invoke that rule. However, I do recall that being a dissent that was joined by Justice Sotomayor.

Personally, I'm inclined to agree with the majority here. I also think the rule of lenity should be more widely adopted as I think it's a fundamental aspect of due process.

[politicallefty]

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.

[politicallefty]

You shouldn't be so surprised, because you and many others should stop assuming that Supreme Court Justices almost always base their decisions on their ideology. It *often* happens that way, but not always. "It was never altogether realistic to conclude that behind all judicial dialectic there was personal preference and personal power and nothing else." (Alexander Bickel, "The Least Dangerous Branch," page 80, (1962).)

My point wasn't about the ideological leanings of the Justices per se. I already know that most decisions are not decided on the typical ideological breakdown. I think a majority of decisions are are still unanimous. It is interesting to look underneath though and see what the Justices are saying. Looking at concurrences is one of the really good ways to do that. This is Justice Jackson's first term on the Court, so obviously she is of higher interest than some of the others. There has been a notable number of concurrences where it's just Gorsuch and Jackson together and no one else. (I didn't say it was a bad thing, btw. I'm just quite intrigued and I actually find myself in agreement with those concurrences.)

By the way, we just had another Gorsuch/Jackson concurrence in Tyler v. Hennepin County. The Court definitely got it right, but the concurrence took a closer look at the Excessive Fines Clause.

[politicallefty]

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.

[politicallefty]

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.

[politicallefty]

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.

[politicallefty]

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.

[politicallefty]

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.

[politicallefty]

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?

My suspicion has been that Roberts has affirmative action, but I don't know how they're going to issue the decision. I really don't see two different authors for affirmative action despite the splitting of the case.

Also, keep in mind someone is writing twice in March. That complicates the overall tea leaves somewhat.

We can read the tea leaves for April now. Alito and Kagan are the only Justices not to write and we have two cases remaining, one of which is Groff. I think we know which scenario is a lot more likely.

[politicallefty]

The AEDPA strikes again. It really is a terrible law (and one that seems to fly under the radar apart from those that follow cases like these), but it's so much worse when interpreted through the lens of a conservative supermajority. This line from the majority opinion really sums things up: "Congress has chosen finality over error correction". Actual innocence is not relevant to this Court.

If you needed any evidence that Justice Jackson has really hit the ground running in her first term, her dissent in this case is 39 pages (compared to 25 for the majority).

[politicallefty]

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.

[politicallefty]

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?

It's definitely a possibility. If it's Alito, we definitely know what's happening. I think Roberts is more likely to strike down than uphold, but I'd guess it's like 70-30 odds. My biggest concern with him is with his line of questioning in oral arguments though.

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.

? Not sure why you'd be surprised by someone else writing. The March sitting was very light — in addition to those two, Gorsuch, Kagan, Barrett, and Jackson have not yet written.

I was looking at the big picture. Roberts and Alito both only have three opinions each. Barrett and Jackson both already have six opinions. Gorsuch will likely get his sixth opinion with 303 Creative and Kagan will likely get her sixth from the case that isn't Groff from the April sitting. If it's not Robert or Alito, one of them might only end up with five, which doesn't seem likely. For both of them to be skipped over for both January and February seems pretty unlikely.

[politicallefty]

This seems like it might be worth mentioning though:

https://twitter.com/ReichlinMelnick/status/1672256231606734849

[politicallefty]

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.

[politicallefty]

Gorsuch has a second opinion from November. That upends my calculus.

[politicallefty]

Gorsuch has a second opinion from November. That upends my calculus.

Do you think we're looking at a lost majority for Roberts or Alito?

I'm at a loss. Maybe Gorsuch doesn't have 303 Creative. I wonder if Alito might have it now.

[politicallefty]

We have Moore. It's by the Chief. Appears to be the a full opinion. Dissent by Thomas, joined Gorsuch and Alito.

[politicallefty]

We have Moore. It's by the Chief. Appears to be the a full opinion. Dissent by Thomas, joined Gorsuch and Alito.

Thank goodness.

And f***  you alito and thomas. The latter being the worst POS in US History.

Alito actually only joined on the mootness aspect of the Thomas dissent (Part I). Part II of the Thomas dissent went onto the merits, where he only held onto Gorsuch. Alito didn't join that part.

[politicallefty]

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.

[politicallefty]

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/

I've been wondering the same myself. It seems unlikely. SCOTUS forcing a claw back of billions of dollars that was guaranteed forgiven by the government? I've never heard of anything like it.

[politicallefty]

Roberts has affirmative action. It's struck down on 14th Amendment grounds, 6-3.

[politicallefty]

In other news, Groff was unanimous, with a concurrence by Sotomayor (joined by Jackson). The de minimis standard is no more. In its place is the following:

Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.

The standard is clearly changed, but it doesn't look to be too sweeping.

[politicallefty]

Wow, the made-up case is even more made-up? What a shock.

SCOTUS cannot in good conscience release its decision with this new information. Is there a mechanism for them to say "whoa hold on we gotta re-argue this"?

Yeah, that's crazy if true. As for your question, SCOTUS can pretty much do whatever it wants.

[politicallefty]

Alito has both Abitron and Groff. Could Sotomayor have Nebraska???

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

Seems more like Sotomayor lost her majority in Abitron — four-vote concurrence in the judgment that's slightly longer than the majority opinion. Might be why it took so long to release.

That's interesting if true because some seem to think Alito might have lost his majority in Mallory (which happens to be one of the strangest breakdowns we've seen with this current Court).

I think it could easily be anyone that didn't already write for February, though it seems like it's still most likely to be Roberts.

[politicallefty]

So...student loan decision tomorrow then?

Yep. That and 303 Creative are all that remain for this term.