SCOTUS Finishes Up a Session Marked by Unpredictable Alliances

On June 29, the U.S. Supreme Court issued opinions in three cases, leaving just two remaining for the session, which are likely to be released on June 30. The biggest takeaway from the new decisions is that each justice cannot be placed in an ideological box or otherwise counted on to rule one way or another. This is true for both the left and right blocs, as well as the more nebulous middle-ground justices. Either the bedfellows are strange, or popular perception of regular bedfellows needs adjusting.

A flurry of recent opinions has offered an outsized diversity of views. No previous or current common method of analysis could have predicted those pairings. And the three fresh decisions show the Court continuing odd alliances.

In Minerva Surgical v. Hologic, the justices ruled  5-4 on an obscure patent claim issue. The ruling was written by Justice Elena Kagan, joined by Chief Justice John Roberts, and Justices Stephen Breyer, Sonia Sotomayor, and Brett Kavanaugh. Justice Samuel Alito filed a dissent, as did Justice Amy Coney Barrett joined by Justices Clarence Thomas and Neil Gorsuch.

In PennEast Pipeline Co. v. New Jersey, the justices ruled 5-4 that a certificate issued by the Federal Energy Regulatory Commission authorizes a private company to condemn all necessary rights-of-way, whether owned by private parties or states. Roberts wrote the majority opinion, in concert with Breyer, Alito, Sotomayor, and Kavanaugh. Gorsuch and Barrett dissented separately, the latter joined by Thomas and Kagan.

The one exception to this cross-ideological trend was in Johnson v. Guzman Chavez. Here, the justices held 6-3 along conservative-liberal lines that the detention of a noncitizen ordered removed from the United States who re-enters without authorization is governed by a certain law (8 U.S.C. § 1231).

The biggest drama at the High Court these days is gossip and predictions about Breyer’s future. Concern is high that the 82-year-old might retire or pass away at a time in the future when the Democratic Party does not control the Senate and the presidency. Many Democrats are desperate for him to retire amid the current political circumstances in Washington, D.C. to make way for a young liberal to be placed on the Court, securing that seat for the left for at least a generation. This latest batch of decisions, with flexible lines and little partisan argument, may make another term on the Court more attractive for Breyer. Nevertheless, if he decides to go, expect an announcement by early July.

The last two highly anticipated cases involve the Voting Rights Act and charitable donor disclosures that could impact political donations.

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Read more from Scott D. Cosenza.