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Supreme Court OT2023 at the Middle of June

The Supreme Court issued six more opinions this week, bringing the total of decided cases to thirty eight. Twenty-three cases remain, which is a substantial number if the Court is going to complete its work before the end of June.

As was true two weeks ago, the rate at which cases have been decided matches that of last term, but is well behind the rate of decision-making we observed in prior years. In theory, there are nine remaining potential opinion days in June (setting aside the Juneteenth holiday), but as of this writing the Court does not plan to issue any more opinions until June 20. If that holds, we will likely see some opinions the first week of July. (It would be quite unusual for the Court to issue opinions after July 4, though that happened in OT 2019 due to Covid-19.)

The Court’s opinions still show a surprising degree of unanimity, though (as expected) we are starting to see more divisions as the justices release opinions in the more difficult cases. The justices have been unanimous in the judgement in 25 of 38 cases decided so far—approximately two-thirds of argued cases—but some of those cases have seen sharp splits over rationale, and the proportion of unanimous cases is almost certain to drop between now and the end of the term.

While we have seen lots of unanimous cases, we still have not seen too many 6-3 cases decided along ideological lines. There have been a total of nine 6-3 decisions thus far, but only four have been along traditional right-left lines. Only two cases this term have been decided 5-4.

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

  • Sotomayor: 7
  • Thomas: 6
  • Alito: 4
  • Kagan: 4
  • Kavanaugh: 4
  • Jackson: 4
  • Barrett: 3
  • Gorsuch: 2
  • CJ Roberts: 2

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).

Of the remaining cases, the lion’s share will be written by conservative justices. The liberal justices represent one-third of the Court, but have been responsible for 40 percent of the Court’s majority opinions thus far. I would not be surprised if liberal justices write no more than four or five of the remaining majorities.

For those who have read this far, here are some purely speculative predictions about what we may see. I suspect the Chief to have quite a few major decisions, in no small part because he has only authored two opinions for the Court thus far. I could see him having RahimiRelentless (the Chevron case), Moore, and the Trump immunity decision. I suspect Justice Gorsuch as SEC v. Jarkesy, Murthy, and Fischer, and I would be surprised if Kavanaugh does not take Ohio v. EPA. I have no prediction with regard to NetChoice, other than I think the two cases will produce a splintered mess.

Of course, these predictions are worth no more than you paid for them, and we should know whether I am right soon enough.

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