Predicting Case Authors and Outcomes as the Supreme Court Hits the Home Stretch

This term the Supreme Court was extraordinarily slow to issue opinions, but they have been catching up. As of today, there are only ten argued cases yet to be decided, so it seems likely the Court will finish its October Term 2022 business this week.

As Yogi Berra warned, it’s tough to make predictions, expecially about the future. Nonetheless, here I offer a few likely-worthless predictions about which justices will write the remaining opinions, and how those cases might come out.

To set the table, consider the following. The term heard fewer cases than normal, and has resulved fewer than fifty cases thus far. Justice Kavanaugh leads the pack with seven majority opinions to date. I think that’s it for him. Ditto Justices Barrett, Jackson and Thomas, who have each authored six. Justice Gorsuch, Kagan, and Sotomayor have each authored five opinions, so it is reasonable to assume they were each assigned at least one more. Justice Alito and Chief Justice Roberts have each authored only three opinions, so we would expect each of them to have multiple additional opinions.

Now the cases, in the order in which they were argued.

• Harvard/UNC Affirmative Action Cases—Chief Justice Roberts writes, holding both schools’ use of race unlawful. The conservative justices splinter on how far to go limiting the use of race in college admissions, as not all are willing to eliminate the consideration of race or pursuit of racial diversity all together. If these cases produce two separate opinions, Justice Thomas may have one of them.
• Mallory v. Norfolk Southern – Justice Alito writes, limiting the ability of states to require consent to jurisdiction as a condition for doing business in the state.
• 303 Creative v. Elenis – Justice Gorsuch writes, concluding the state cannot compel a web designer to make websites contrary to their deeply held beliefs.
• Moore v. Harper – Chief Justice Roberts writes (perhaps as “per curiam”) concluding that the case is moot and that grant of certiorari divested state courts of jurisdiction.
• Student Loan Cases—Chief Justice Roberts writes, finding Missouri has standing and the program is unlawful. (Unlike some, I see very little in the Texas immigration case that undermines the case for standing in this case.)
• Abitron Austria GmbH v. Hetronic International – Justice Sotomayor writes. I have no idea what the outcome might be as I know very little about the applicability of the Lanham Act. Heck, I barely understand the issues in this case (let alone why it’s taken so long for a decision here to issue).
• Groff v. DeJoy – Justice Alito writes, siding with the employee who sought religious accommodation.
• Counterman v. Colorado – Justice Kagan writes, rejecting the objective “reasonable person” standard for determining what is a “true threat” and remanding back to the Colorado courts.

If my predictions are correct, I will tweet and blog repeatedly about how this demonstrates my keen insight about the Court. In the (more likely) event that many of these predictions are gobsmacklingly wrong, I will delete this post and hope that people do not use the Wayback Machine to find it.

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