Supreme Court Bingo, 2024 Edition

As the first full month of summer break winds up for America’s youth, parents who telecommute can finally begin to see a crack of light at the end of the tunnel to a time when their productivity might get back to normal. For Supreme Court clerks, it means the time approaches when they leave their clerkships and head to big firm life. For court watchers, however, it means that it is time to play “Supreme Court bingo.” 

The game works by paying attention to a few loose rules under which the high court operates. Its terms are divided into monthly sittings. Each sitting typically has roughly 6-12 cases heard. Each week, the justices meet two times in a conference room with no witnesses, where they discuss and vote upon the cases. After the votes are cast, the senior-most justice in the majority (note: The chief justice of the United States is always the senior-most justice on the court) will then assign authorship for the opinion.  

This senior-most justice may assign the case to herself, or she may assign to a more junior colleague. If he or she does assign the case, it will typically be given to a justice with views similar. This is how a liberal justice might ensure that a case is written with a liberal bent, while a conservative chief can ensure that the eventual opinions includes analysis, caveats, and dicta favorable to her views.

More importantly, the justices attempt to assign a similar number of opinions to each justice for each sitting and for each term. Obviously, this isn’t always possible. Not all sittings have exactly nine cases, and not every term has a number of opinions that is divisible by nine. Sometimes justices lose their majority (i.e., a justice changes his mind, which they are free to do until the opinion is published), while other times an opinion will come out unsigned (per curiam).  

Nevertheless, toward the end of a term a discerning court watcher can apply this rule of thumb to get a rough idea of which justices are writing which opinions. In some cases, this is enough to determine how the case will be resolved.

There are 61 cases this term. That means seven justices will author seven opinions, while two will author six. This math is somewhat complicated by the fact that two of the outstanding cases raise similar issues, and thus may be consolidated. There were also three per curiam opinions.

Where do the justices stand right now? Clarence Thomas and Sonia Sotomayor have each written seven opinions, so they are done. Elena Kagan has authored six, so she may be done. Ketanji Brown Jackson and Brett Kavanaugh have authored five apiece. Then, in news that will likely seem ominous to liberal readers, Samuel Alito and Amy Coney Barrett have written just four opinions each, while the chief justice and Neil Gorsuch have only released three opinions. That’s a lot of opinions in the pike for conservative justices.

Breaking things down further sitting-by-sitting, all of the opinions for the October and November sittings are out. For the December sitting, Roberts, Gorsuch, and Barrett have yet to release opinions (nor has Thomas, though as noted above, he’s unlikely to write another opinion). Neither Roberts nor Gorsuch had an October term opinion, so they seem likely candidates as the authors. The cases are Security and Exchange Commission v. Jarkesy, which deals with the SEC’s ability to impose fines, and Harrington v. Purdue Pharma, which has to do with the bankruptcy code. Jarkesy has some particularly juicy constitutional questions, so if he is in the majority the chief justice will certainly author the opinion, leaving Purdue Pharma to Gorsuch. I’d guess the chief writes Jarkesy, joined by Barrett and Kavanaugh and the three liberal justices, but it could go either way.

For the January sitting, neither Roberts nor Kavanaugh has written an opinion. However, both of the cases raise a similar question: Whether so-called Chevron deference should be discarded.  This will be obscure to non-attorneys, but it has major implications for the law going forward. At least one of these opinions will almost certainly be written by the chief justice. The only question is whether the slightly different fact patterns necessitate two different opinions. Let’s assume not, and that Roberts writes both as a consolidated opinion ending Chevron deference.

February has 11 opinions, with four outstanding. Alito, Gorsuch, and Barrett all have yet to write an opinion. Both Moody and NetChoice are top-ticket opinions for this term, dealing with laws aiming to regulate website content. Ohio v. EPA deals with a major environmental regulation from the Environmental Protection Agency. Another case, known as Corner Post, deals with a fairly obscure statute of limitations issue. Moody and NetChoice might be two separate opinions, which would confound some of the remaining predictions.

Alito, one of the least speech-friendly justices on the court, will probably dissent in those cases, so I am assuming he writes Ohio v. EPA, striking down the law. Gorsuch seems a likelier candidate for the Moody/NetChoice case, leaving Barrett the statute of limitations case. If Moody and NetChoice are decided separately, it’s hard to predict who the author will be, other than “not-Thomas-or-Sotomayor.” This is also the sitting where the Trump v. Anderson per curiam opinion was written by one of the non-Barrett conservatives.

Only one case remains from the March term: Murthy v. Missouri. This is another case dealing with state regulation of social media companies. It’s hard to say for certain, but this is probably Barrett’s opinion. If, however, the state were to win, it would probably be Alito’s, though that seems unlikely.

This brings us to the April docket. Five cases are outstanding. Roberts, Gorsuch, Kavanaugh and Jackson have yet to write opinions. If the above is true, Alito has only five opinions outstanding. So those are our most likely authors.  Regardless, Chief Justice Roberts almost certainly has the banner case from the term: Trump v. United States, dealing with presidential immunity. I’d expect that the case is remanded for further fact-finding, though if absolute immunity somehow carries the day, this would be more likely to be an “Alito case.” Two cases – Snyder and Fischer – are fairly obscure, one of which seems likely to go to Justice Jackson.

The two remaining marquee cases for the term are Grants Pass, which deals with municipal efforts to regulate “camping” on public property (e.g., homeless encampments), while the Moyle case deals with Idaho’s abortion regulations (via the more mundane issue of federal pre-emption). Those two, plus the more non-Jackson case from above, seem likely to go to Justices Alito, Gorsuch, and Kavanaugh. All things considered, this is likely bad news for liberal court watchers. The best-case scenario would be that Alito has either Snyder or Fischer, the more libertarian Gorsuch takes the Oregon homeless encampment case, while Kavanaugh, the most moderate of the remaining justices, writes the state pre-emption case. But that is a lot of cards falling the right way, and probably too much for liberals to ask; they’d probably be happy with one of the three happening.

So that’s this term’s Supreme Court bingo. We’ll find out over the next week or two how this pans out.