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.

[Ferguson97]

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.

So dumb question, what happens if a justice just always dissents from the majority? They just don't get an opportunity to write for the majority?

[Vosem]

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.

So dumb question, what happens if a justice just always dissents from the majority? They just don't get an opportunity to write for the majority?

Yeah, that's what would happen (and I think historically this happened some terms to ultra-right-wing judge James McReynolds, who was on the Court from 1914-1941), but this is unlikely to come up in the modern day. An overwhelming majority of cases are either 9-0 or 8-1, even in the most controversial terms. Judges who are in the minority more often (nowadays, the liberal three) would just get assigned more of the non-controversial opinions.

On the current court, all the judges are in the majority on most cases -- Sotomayor is the most frequent dissenter but she still agrees with 58% of the opinions. For someone not to have enough cases, they'd have to agree with the court on less than 1/9 -- 11% -- of cases; that's kind of insane and just doesn't reflect how the institution works.

[Buffalo Mayor Young Kim]

I’d just like to call everyone’s attention to
Sackett vs. EPA
https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf

Today in a 5-4 the ‘Orginalsits’ and ‘Textualists’ of the Supreme Court have decided that the plain text word adjacent, explicitly inserted into the statue to clarify the standard was ‘adjacent’ and no say ‘adjoining’ actually means ‘adjoining’.

Just to remind everyone that the SC Justices are playing Calvin ball in their actual rulings, and Originalism and Textualism aren’t actual doctrines they adhere to.

[SnowLabrador]

Abolish the Supreme Court.

[Vosem]

More interestingly, this almost seems to be a ruling about how to write legislation: the argument of the majority is that when the wording is unclear it should be interpreted to minimize federal power, or intrusion onto the rights of property owners (the latter of which is longstanding practice), and while 'adjacent' has some meaning beyond 'adjoining', that meaning is vague, and therefore in practice any particular wetland which is not adjoining can't be said to be adjacent. (There is a complicated argument that the exact wording used in the law implies that 'adjacent wetlands' are meant to already be included in 'waters of the United States', but this is generally contrary to administrative practice and I find the prominence given this argument odd, as if it were necessary for coalition-forming.)

Second, the EPA’s interpretation gives rise to serious vagueness concerns in light of the CWA’s criminal penalties. Due process requires Congress to define penal statutes “‘with sufficient definiteness that ordinary people can understand what conduct is prohibited’” and “‘in a manner that does not encourage arbitrary and discriminatory enforcement.’” McDonnell v. United States, 579 U. S. 550, 576 (2016) (quoting Skilling v. United States, 561 U. S. 358, 402–403 (2010)). Yet the meaning of “waters of the United States” under the EPA’s interpretation remains “hopelessly indeterminate.” Sackett, 566 U. S., at 133 (ALITO, J., concurring); accord, Hawkes Co., 578 U. S., at 602 (opinion of Kennedy, J.).

The EPA contends that the only thing preventing it from interpreting “waters of the United States” to “conceivably cover literally every body of water in the country” is the significant-nexus test...

This is kind of obviously the meat of the decision and the reason that the majority chose to enact it.

Today in a 5-4 the ‘Orginalsits’ and ‘Textualists’ of the Supreme Court have decided that the plain text word adjacent, explicitly inserted into the statue to clarify the standard was ‘adjacent’ and no say ‘adjoining’ actually means ‘adjoining’.

I think the decision has more to do with the unacceptable vagueness of the 'adjacent' standard rather than a dispute about its meaning; five Justices chose to strike a single word under the Due Process Clause rather than take the law as written. I agree that Alito's opinion here tries to act as though it were a narrower decision than that and merely glances at due process, but the outcome makes much more sense as a due process case than as being about statutory interpretation.

Kavanaugh argues that the Court should've adopted the usual interpretation of 'adjacent' that's been used since the 1970s, but (...while I have not heard the oral argument, so I'm speculating), it seems judging by Alito's opinion like the EPA asked for significantly more here by arguing for Kennedy's significant-nexus test (which Kavanaugh himself would've narrowed), and probably thereby lost the case by asking for too much.

[I spent the winter writing songs about getting better]

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.

So dumb question, what happens if a justice just always dissents from the majority? They just don't get an opportunity to write for the majority?

Yeah, that's what would happen (and I think historically this happened some terms to ultra-right-wing judge James McReynolds, who was on the Court from 1914-1941)

Why did Wilson nominate such a type?

[John Dule]

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.

So dumb question, what happens if a justice just always dissents from the majority? They just don't get an opportunity to write for the majority?

Yeah, that's what would happen (and I think historically this happened some terms to ultra-right-wing judge James McReynolds, who was on the Court from 1914-1941)

Why did Wilson nominate such a type?

Shared racism.

[Donerail]

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.

So dumb question, what happens if a justice just always dissents from the majority? They just don't get an opportunity to write for the majority?

Yeah, that's what would happen (and I think historically this happened some terms to ultra-right-wing judge James McReynolds, who was on the Court from 1914-1941)

Why did Wilson nominate such a type?

McReynolds was extremely unpleasant on an interpersonal basis and appointing him to the Supreme Court — a lifetime role traditionally somewhat removed from day-to-day political life — meant that he would not be able to serve in Wilson's administration, be involved in Democratic Party politics, or otherwise interact with Wilson

[MarkD]

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.

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).)

~~~

Abolish the Supreme Court.

Also known as throwing the baby out with the bathwater. Coming from you, I'm not surprised.

[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.

[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! 

[NewYorkExpress]

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.

[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.

[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.

[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.

[brucejoel99]

👀

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

[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.

[brucejoel99]

👀

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.  

Prob Kav, based on OA

[NewYorkExpress]

👀

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.

[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.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

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.