What’s Left at the Supreme Court?

After yesterday’s colorful opinion day – involving raisins, motels, and Spiderman – the Supreme Court announced that it would be handing down more rulings on Thursday and Friday, with Monday also currently indicated as a decision day. So what’s left to decide? (Not to be confused with “why are Court decisions moving left? – a remarkably premature assessment given the cases remaining, not to mention coding issues regarding liberal/conservative.)

There are seven cases outstanding and none of them are duds. Cato has filed in five of them and the other two involve the hot topics of redistricting and the death penalty, so strap yourselves in for the next week. Here’s my best guess at what will happen and when, sorted arbitrarily by rough order of (my) curiosity and with links to case background and Cato’s brief: 

  • King v. Burwell: This is the Obamacare case regarding the illegal IRS rule that provides tax credits (and attendant mandates/penalties) in states that didn’t set up exchanges. There are clearly four votes for the government and three for the plaintiffs, with Chief Justice Roberts and Justice Kennedy as the swing votes – and based on oral argument, they’re complete toss-ups. This case will come on Friday or Monday and the only outcome I feel confident predicting is that Roberts or Kennedy will write the opinion and it’ll be 5-4.
  • Obergefell v. Hodges: This is the marriage case. The conventional wisdom is that it’ll come on the last day of term and that it’ll be a 5-4 ruling striking down the state laws that don’t extend marriage license to same-sex couples. I agree with the conventional wisdom, though wonder whether the chief justice will at least vote that states have to recognize out-of-state same-sex marriages without necessarily issuing marriage licenses to same-sex couples themselves. Also, if King comes down the same day and the government loses there, it’ll be fun watching both the media and politicos scrambling to both praise and condemn the Court at the same time.
  • Texas Dept. of Housing v. Inclusive Communities Project: You may have forgotten about this case because it was argued much earlier than the others, but it very likely will be the third-most-noted case from this term. At issue is the application of “disparate impact” claims under the Fair Housing Act. That sounds like a snooze until you realize that what’s at stake is suing mortgage brokers for racial discrimination simply because they deny loans (or offer higher interest rates) more to members of one racial group than another – regardless of credit scores or other completely race-neutral considerations. Justice Kennedy is likely writing this opinion because he’s the only one who hasn’t authored a January case, which is a good sign for the opponents of disparate-impact theory because it seemed at oral argument that Justice Scalia was actually the swing vote. One other possibility, based on Scalia’s expressed concern, is that the Court will set this case for re-argument on the question of whether disparate-impact claims, regardless of statutory basis, are constitutional. 
  • Michigan v. EPA: This is a hard case to understand but it boils down another example of an executive agency’s ignoring the law it purports to enforce. In technical terms, the issue is whether the EPA “unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.” This decision will have a huge impact on electricity costs, stock prices, and energy development. It will also, in conjunction with King, speak volumes about the power of administrative agencies. The smart bet is that Justice Scalia is writing the opinion here, against the government, but these complicated administrative-law cases often end up with multiple concurring opinions – particularly regarding remedy – and no clear winner. We could see this opinion on Thursday, but it could also be the “undercard” to gay-marriage day.
  • Johnson v. United States: The Supreme Court will probably strike down part of a federal law here, the one enhancing the criminal penalties for “career criminals” convicted of a firearms offense. What could possibly be the problem with that? Well, the “residual clause” applies its sentencing enhancements to crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.” The justices have previously thrown up their hands at what that could possibly mean – plus this case was argued twice this term – and now they’ll hold the residual clause unconstitutionally vague.

And here are the two cases that’ll get plenty of media attention even though you won’t find my name on a relevant brief: 

  • Arizona State Legislature v. Arizona Independent Redistricting Commission: Both sides plausibly pitched me on this one, which means both that it’s a close call as a matter of law and there’s no clear libertarian or originalist position. The case involves redistricting via independent commission rather than legislature – a commission put in place by a popular initiative – and whether such a process violates Article I’s Elections Clause. California is only other state that would be directly affected by the opinion here, which will probably be written by either Roberts or Kennedy (whichever doesn’t write King) in favor of the AZ legislature.
  • Glossip v. Gross: This is a death-penalty case, but one that hasn’t garnered the high passions that such cases typically do. The issue isn’t the constitutionality of capital punishment or whether some class of defendant should be eligible for it, but whether a specific type of lethal injection – a three-drug cocktail that may or may not mitigate pain during the execution – violates the Eighth Amendment’s proscription of “cruel and unusual punishment.” I imagine that there are five votes here to turn back the “death penalty resistance” and ok the procedure.

In sum, all the remaining cases are big and all except Johnson are likely to be 5-4. And if the Court strikes down both the IRS-Obamacare rule and hetero-only marriage laws, Cato will be the only group to have filed on both winning sides.