Supreme Court Politburo Watching
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While those interested do some #waitingforLyle, why not some pointless predictions? Sean Trende has a good roundup of the justices most likely to write the remaining opinions, so we’ll use him as a baseline.
The FHA case: Almost certainly an opinion authored by Kennedy, probably finding the FHA does not allow for a disparate impact claim.
Sadly, yes. Eliminating disparate impact claims is virtually tantamount to repealing the statute, which of course to the Roberts Court is a feature, not a bug. I’ll believe Scalia will save the FHA when I see it.
The Arizona redistricting case: Most likely Roberts or Kennedy, probably striking down the commission. The chances that Ginsburg writes this opinion, however, are not insubstantial.
Agreed. And he may be overrating the chances of an RBG opinion.
The Obamacare subsidies case: Either Roberts or Kennedy. This is a “pick ’em” on the outcome. If they do find for the government, expect federalism concerns to play a large role.
Basically right, although I’m agnostic on whether federalism would play a major role if the Court votes for the government. Forced to choose, I’ll stick with the Court going Moops. I can definitely see a classic Roberts faux-minimalist opinion a la Shelby County, with plenty of earnest-sounding lies about how Congress can easily fix the bad effects of the Court’s modest decision.
The EPA case: Scalia seems like the most likely author, which would almost certainly be a setback for the EPA. Kennedy could be writing this, however, especially if Ginsburg writes the Arizona redistricting case.
Alas, also probably right. The hidden time bomb of the remaining cases.
The ACCA case: This is probably Ginsburg, unless she has the Arizona redistricting case. If she does not write this opinion, anyone other than Breyer (or Scalia, if he does author the EPA case) is a likely candidate.
Agreed.
The Oklahoma death penalty case: This seems likely to go to a conservative justice. Under our rubric, Alito and Thomas are the only conservative justices who don’t have an opinion for this sitting (and who haven’t written eight opinions). But again, oral argument isn’t always clearly indicative of how things turn out, and we might be incorrect in our assumptions about how things play out in the other cases.
Perhaps the most mortal lock of the likely conservative victories.
Marriage equality: This opinion will probably be authored by Kennedy. The real question is just how far he is willing to go.
I actually don’t foresee anything cute here — I think the opinion will create a federal right to same-sex marriage. Kennedy being Kennedy, my guess is that the status of sexual orientation under the equal protection clause will remain a shambles. A lot of people think that Roberts will make this 6-3; I’m not one of them.