As the term winds down, the Court will begin releasing opinions pretty rapidly. There are 14 cases left and the Court will decide all of them by June 29. Here are a few of the most important left to be decided, sorted by the date they were argued:
I’ve uploaded the Term Case Index (here) to reflect the most recent opinions and I’ve uploaded my term chart (.xls / .pdf).There are obviously more cases of note, but those are the cases that I think will stand out the most. I’ve included Melendez-Diaz primarily because the decision is so late coming out, which usually suggests that there will be something of note within the opinion. Based on the allocation of cases thus far, I would venture to speculate that Justice Kennedy will author the majority opinion in that case. Lyle Denniston noted Justice Kennedy’s interesting performance during oral arguments and, looking at the transcript, I’m not exactly sure what it means for Justice Kennedy to be writing the majority except that it will likely be a very narrow decision. Justice Kennedy has been fairly late on getting out all of his opinions (he has issued the fewest majority opinions, but just barely) and he has been four of out his five opinions have been in 5-4 decisions. He will likely author 3-4 more majority opinions before the end of the term and there is a good chance that most of those will be in equally close cases.
The other cases stand out to me as interesting cases and the outcome of those cases could have a very real impact on the substance of Judge Sotomayor’s confirmation hearings, even though they are unlikely to have any real impact on the actual chances of her being confirmed. Each of these cases could provide commentators, pundits, and politicians the opportunity to claim that their policy of choice is either close to being overturned or close to being accepted by the Court. Ricci in particular could play a major role in setting the tone of the hearings, even it it means going from vague answers on vague questions to vague answers on more narrowed questions.
Perhaps more interesting is the effect that her pending confirmation will have on the opinion as it is being written. Justice Ginsburg recently gave a speech to the Second Circuit Judicial Conference and praised the pending nominee for her intellect and history. The Justices are obviously cognizant of their soon-to-be-colleague and as much as they may disagree vehemently on important issues, many of them would likely view it as unseemly to provoke any unnecessary scrutiny of their colleague just weeks before her hearing. This current batch of Justices, in particular, has had a rough time with confirmation hearings as Justice Kennedy was the third choice nominee after two previous judges were summarily shot down by political machines and Justice Thomas was confronted with the now famous Anita Hill scandal. Meanwhile, many of these Justices watched as their beloved institution was thrown into the dust as politicians on both sides of the isle second-guessed their rulings and behavior.
The Justices know that whatever they say about the Second Circuit’s dismissal of the case will be drawn out of proportion because of the current political climate and I think that is why it will be interesting to see whether or not they write anything about it. If they do choose to write about the circuit’s dismissal, even a few words could have a meaning much larger than they would in any other environment.