Conservative court watchers have viewed the end of the Supreme Court term with a mixture of hope and dread. The most important decisions are often held over until the very end of the term, as the Justices pore over every word and try to bring more Justices around to their view of the law. And more often than not, it has been conservatives’ feelings of dread that have proved justified.
Consider the last two weeks of the 2002 Term, when the Court overruled a 20-year-old precedent and found a constitutional right to engage in sodomy, while also allowing state affirmative action plans to stand. Or the end of the 2003 Term, which brought rulings that dealt a blow to the Bush Administration’s plans for the War on Terror, and expanded the scope of the Miranda decision (because case names can be lengthy, I will omit them or use a shortened form in this column). The waning days of the 2004 Term saw the Court issue its infamous Kelo decision — which greatly expanded the power of eminent domain — and likely put an end to the Rehnquist Court’s “federalism revolution” by reaffirming that the federal government can regulate purely intrastate commerce because of its effects on interstate commerce.
But as we head into the final week of this term, there are signs that this year will be different, and that the decisions handed down today and tomorrow will set the course for a new, more conservative Court. Often, a series of serious setbacks for one “side” is heralded by a change in the tenor of the opinions in the cases leading up to the end of the term. Justice Scalia’s unusually caustic concurring opinion in a case involving the mundane issue of federal preemption at the end of the 1999 Term preceded a string of rebukes for conservative legal thought: the Court expanded its anti-school prayer jurisprudence, reaffirmed Miranda, upheld restrictions on protests at abortion clinics, and struck down partial birth abortion laws.
This year, though, the angry dissents are coming from the left. Justice Ginsburg has taken the unusual step of twice reading dissents from the bench in 5-4 cases: once in the partial birth abortion case, and once in a case limiting the time for bringing a workplace discrimination claim. Neither ends in the typical “I respectfully dissent,” with one opinion dropping the “respectfully” altogether.
But the strongest evidence for believing that the term is about to end on a high note for conservatives comes in the form of an obscure parlor game played by Court watchers. Justices typically strive to distribute opinions equally in a Term. Moreover, they attempt to distribute opinions equally within a monthly sitting. Thus, each Justice wrote one opinion among the nine cases argued during October, and each Justice wrote at least one opinion among the ten cases argued during November (with Justice Alito writing two) and so forth.
So if you are very diligent, you can keep a chart of cases argued by term, and can keep track of the authors of each decision. Then, by a process similar to an LSAT logic game, a person with way too much time on his hands can offer a good guess as to who is writing the remaining opinions. Fortunately for the reader, the excellent scotusblog.com keeps just such statistics, and I have way too much time on my hands.
This technique reveals some good news for conservatives from the outset. The only decisions remaining from the December sitting are the high school affirmative action cases. The only Justice who has not written from that term is Chief Justice Roberts. Therefore, it is almost certain that he is writing those cases. His views on affirmative action are not yet known, but he is widely believed to be to the right of any of the four “liberal” justices on the issue. A wide-ranging opinion striking down state-sponsored affirmative action plans is possible, though a nod must also be given to the possibility that the decision has been outstanding for so long because the Chief has lost his majority along the way.
Chief Justice Roberts is also the likely author of the opinion in Hein, a technical, but important, opinion from February regarding taxpayer standing to sue under the Establishment clause, since Roberts opinion here would leave each Justice with five opinions up to the March sitting. After this, the picture is murkier. Thursday brought the picture into some focus, as the Court handed down three opinions on relatively obscure issues, all of which were authored by a liberal Justice. This alone was good news for conservatives, as the two non-unanimous opinions each brought dissents from a liberal Justice, meaning that the more conservative view had actually prevailed in those cases. Moreover, this makes it more likely that a conservative Justice is writing the remaining opinions.
Justice Breyer’s opinion in Rita was his third opinion since February sitting, meaning that he is unlikely to write any of the remaining opinions. Likewise, Justices Scalia and Thomas have written three opinions, meaning they are probably done for the term. That leaves six Justices for the remaining six decisions. This is where the real guesswork begins. Justice Alito has not written since February, so it is almost certain that he will write two more opinions (and it is my personal belief that he is writing a blockbuster in the McCain/Feingold case, which is delaying his other opinion). Similarly, Justices Kennedy, Souter, and Chief Justice Roberts have only written once since February, so each will write one more opinion. The final opinion will go to one of those four Justices, or to Justice Ginsburg or Stevens, who have written twice.
In other words, Justices believed to have conservative leanings are likely authors for opinions in six or seven of the remaining eight cases. In addition to the three cases described above, these remaining cases involve the execution of the mentally ill, the scope of the Endangered Species Act, the scope of antitrust laws, the availability of the qualified immunity defense, and the intriguing case of whether a school can discipline a student for unfurling a “bong hits for Jesus” banner outside a parade remain. Obviously some of these cases are more important than others, but victories in two or three of them, in addition to Hein, the McCain/Feingold case, and the affirmative action cases, would be a victory not seen by conservatives in a long time.
Conservatives could still be very badly disappointed. The Chief Justice, Justice Alito, or Justice Kennedy may flip on one or more of the remaining cases. But there is also the very real possibility that for the first time in a very long time, conservative Court watchers will end this term feeling very satisfied about the direction of the Court.