Monday, June 09, 2003


Following today's five entirely uninteresting dispositions, the Supreme Court has fourteen argued cases left to be decided this Term. Here is a brief description of what is left, along with the always hazardous attempt to predict authorship based on who has written so far:

February 24 Session (2 cases remaining)

Sell v. United States: Constitutional challenge to the forced administration of antispychotic drugs to render criminal defendant competent to stand trial

United States v. American Library Association: First Amendment challenge to condition that public libraries use Net Nanny-like filtering software on their Internet terminals as a condition for public assistance

Going into the February session, each justice had received at least four opinion-writing assignments, with the Chief and Justices O'Connor and Stevens having received five. (Justice O'Connor's authorship of both of the related three-strikes cases accounts for her "extra" assignment.) The February session had ten cases in total (not counting today's affirmance by an equally divided Court in Dow Chemical); so far, the Chief and Justice Breyer have written no opinions and Justice Scalia has written two. So look for the Chief and Justice Breyer to be writing here (unless Dow Chemical originally belonged to one of them).

March 24 Session (7 cases remaining)

Lawrence v. Texas: Due process and equal protection challlenge to Texas's criminal ban on homosexual sodomy

Grutter v. Bollinger: Equal protection challenge to law school's affirmative-action admissions policy

Gratz v. Bollinger: Equal protection challenge to college's affirmative-action admissions policy

Wiggins v. Smith: Claim of ineffective assistance of counsel for failure to investigate mitigating evidence in death penalty sentencing

FEC v. Beaumont: First Amendment challenge to federal prohibition on campaign contributions and independent expenditures by nonprofit corporation engaged in politcal advocacy

Overton v. Bazzetta: First and Eight Amendment challenge to prison visitation restrictions

Stonger v. California: Ex post facto challenge to state's retroactive abolition of statute of limitations defense

With so many cases left from this session, it is difficult to predict much. The four cases already decided were written by Justices Stevens, Scalia, Souter and Ginsburg, which probably means that either Justice Kennedy or Justice O'Connor will be writing Lawrence, which is the conventional wisdom in any event, since those two often get the ball when a jurisprudentially incoherent decision is needed to prevent the Justices from looking bad at cocktail parties. The data so far also supports predictions that Justice O'Connor will write Grutter and Gratz so that the policies can be struck down narrowly. However, the Fourteenth Circuit predicts that opinions in those two cases will be the Chief's departing gift to the nation.

April 21 Session (5 cases remaining)

Green Tree Financial Corp. v. Bazzle: Claim that use of class-action procedures in arbitration proceedings, where not provided for by arbitration agreement, violates Federal Arbitration Act

American Insurance Association v. Garamendi: Claim that California's state Holocaust Victim Insurance Relief Act is impermissible interference with national foreign affairs power

Nike v. Kasky: First Amendment challenge to imposition of liability on corporation for factual inaccuracies in connection with public statements on matters of public interest

Georgia v. Ashcroft: Challenge under Section 5 of the Voting Rights Act to certain majority-minority electoral districts

Virginia v. Hicks: First Amendment challenge to state law excluding certain non-residents from public housing complex

Seven cases have already been decided in this session, with one opinion each by the Chief, and Justices Ginsburg and Breyer and two opinions each by Justices Stevens and Thomas. So four of the remaining five will likely be split among Justices Scalia, O'Connor, Kennedy and Souter.