Legal Commentary

Reading The Tea Leaves for the Supreme Court?s November and December 2009 Sittings

By John Elwood

With the Supreme Court?s two opinions today in Merck & Co. v. Reynolds and
 Stolt-Nielsen S.A. v. AnimalFeeds International Corp., there are now only four cases outstanding from the Court?s December sitting, and all of them are potentially blockbusters: Free Enterprise Fund v. PCAOB (involving the constitutionality of the Public Companies Accounting Oversight Board, created by Sarbanes-Oxley to guard against accounting monkey business); Black v. United States and Weyhrauch  v. United States (both involving the ?honest services? fraud statute, 18 U.S.C. § 1346), and Stop the Beach Renourishment v. Florida Dept. of Environmental Protection (which involves whether a Florida Supreme Court decision determining property rights under the state?s common law effected a judicial taking of property requiring compensation under the Fifth Amendment?s Takings Clause).  There are three Justices who do not yet have a majority opinion from that sitting:  the Chief, Scalia, and Kennedy.   It seems likely that Black and Weyhrauch will be written by the same Justice.

In a related vein, there are four opinions left from the November sitting:  Graham v. Florida and Sullivan v. Florida (both involving whether imposing a sentence of life without parole on minors for a crime other than a homicide violates the Eighth Amendment ban on cruel and unusual punishments); Bilski v. Kappos (involving the standand for business-method patents), and Schwab v. Reilly (involving a bankruptcy exemption).  And there are three Justices who have no majority opinions yet: Justices Stevens, Kennedy, and Thomas.  

I would be inclined to guess that Justice Stevens will keep Graham and Sullivan if he is in the majority, as a victory lap during his last Term on the Court (he kept Atkins v. Virginia for himself, although he gave AMK the majority in Roper v. Simmons).  In a vacuum, you?d say that Kennedy would get Bilski purely on seniority and relegate Thomas to the dull bankruptcy opinion in Schwab.  But Thomas has done other patent opinions (Quanta Computer v. LG Electronics Inc., JEM Ag Supply v. Pioneer Hi-Bred International, eBay v. MercExchange), which might make him a good candidate for doing Bilski.  But predicting opinion assignments is a crapshoot at best.

UPDATE: Thanks to the commenters who have supplemented my hit-or-miss remote access of my records of decided cases; I?ve updated the post accordingly.  A commenter reminds me that Pottawattamie County v. McGhee from the November sitting was not dismissed until two months after argument (it was settled), meaning that one of the Justices had been assigned to write an opinion in it. Thus, there effectively are five majority opinions from that sitting that have to be accounted for.  Pottawattamie was a pretty significant case, so it?s entirely possible that Stevens or Kennedy would have been angling for it.

Full post as published by The Volokh Conspiracy on April 27, 2010 (boomark / email).