Diary

Divining the Remainder of the Supreme Court Term

It is difficult to predict with a great degree of accuracy how the Supreme Court will decide any particular case.  Some pundits have devised algorithms that can predict outcomes based on oral argument questions and interruptions, but they are less than 75% correct.  There is one way, based on the leadership style of Roberts, that can give a clue.  Tradition dictates that the most senior Justice either writes or assigns majority opinions with the Chief Justice being first in line as concerns seniority.  Roberts almost insists that every Justice, if possible, gets one majority opinion per sitting from oral arguments.  Using that as my criteria, let’s look at the remaining cases.

The first is Texas Department of Housing and Community Affairs vs. Inclusive Communities which asks whether disparate impact claims are recognizable under the Fair Housing Act.  This case comes from the Fifth Circuit which held that disparate impact claims are recognizable.  The record of the Fifth Circuit before the Supreme Court is not great.  Kennedy is the only Justice without a majority opinion from the January sitting when the case was held.   Kennedy was silent during oral argument.  However, given the fact that (1) Kennedy has not written an opinion from this sitting, (2) it is currently the longest pending case, (3) Kennedy generally takes the longest to write an opinion (after Scalia), and (4) the record of the Fifth Circuit, the Court will rule that disparate impact is NOT recognizable under the Fair Housing Act.

From the February sitting, we have two cases pending and three Justices who have not written an opinion.  They are Roberts, Kennedy and Ginsburg.  The two cases are Arizona Legislature vs. Arizona Independent Redistricting Commission and King vs. Burwell.  I am going to assume what everyone else assumes here- that Kennedy will get the gay marriage decision, so let’s eliminate him here.  Both these cases are major.  Of course, it is possible that Kennedy could get one of these cases.  From oral argument, it is apparent that in the Arizona case, their redistricting scheme will be struck down since it completely cuts out the legislature.  It is hard to see how the liberals could drag Kennedy along.  That would then mean that Roberts, who was the most forceful during oral arguments, would get this case.  That leaves Ginsburg to write the Obamacare subsidy case most likely in a 5-4 decision (but I would not be surprised if it was 6-3 with Roberts going along) in upholding the subsidies on concerns over federalism, an issue brought up by Kennedy and Scalia in oral argument.

That then brings us to the March sitting’s lone case Utility Air vs. EPA which asked whether the EPA unreasonably refused to consider costs in making clean air rules.  The only Justice without an opinion from this sitting is Scalia and he will most likely write the decision landing a blow against the EPA… for now.  The case will likely be remanded for further proceedings which would allow the EPA to either consider costs or justify why they do not have to consider costs.

There are three cases pending from the April sitting, but now it gets tough because five Justices have not written an opinion from this sitting.  The first case is Johnson vs. United States and involves some vagueness in the Armed Career Criminal Act.  I believe the decision will be 6-3 with the decision authored by Sotomayor even though she was silent during oral argument.  Although the government will likely prevail here, there will be a warning to get rid of any vague references in the law as future challenges- alluded to during oral argument- may ensue.  In Glossip vs. Gross, the Court was asked to rule on the drug protocol for lethal injections.  There was stern rebukes from Roberts and Alito during oral argument and no doubt that the conservative wing plus Kennedy will likely rule 5-4 upholding the protocol with Alito writing the decision.

That leaves the gay marriage case- Obergfell vs. Hodges- and its companion cases which figure prominently for the questions asked.  I hope I am right about this and I believe Kennedy will write the decision.  And I am going to go against conventional wisdom here and predict they will rule in favor of Michigan’s ban on gay marriage.  It will be a long decision, but Kennedy has shown no tendency to create new suspect classes or elevate any group to that status thus triggering strict scrutiny.  He has had the chance in his previous opinions involving homosexuals.  Further, his original line of questioning surprised everyone as he seemed to suggest that the democratic process in this area has not been followed through enough for a significant period of time.  The payoff for the LGBT community will be a ruling that if a gay marriage is performed and recognized in one state, it has to be recognized in a state that does not perform gay marriages.  In a weird sort of way- which would be in line with the way Kennedy sometimes thinks- this partial victory would be a way to spur the democratic process in a direction he likely, at heart but not at law, favors- gay marriage.

To summarize: no disparate impact analysis under the Fair Housing Act, independent redistricting commissions will be ruled unconstitutional if they completely cut out state legislatures, the EPA will be at least temporarily slapped down, the government will prevail over a vaguely worded criminal statute with warnings to tighten up the language, Kansas’ drug protocol for lethal injection will survive, Obamacare subsidies will survive, and gays will earn a small victory but lose out on the big prize… for now.

Of course, as I said at the beginning, predicting the Supreme Court is decidedly tougher than any game of chance.  We should know either tomorrow or Friday,