Just a handful of cases are left to decide this Supreme Court term, and the last of them could come this week. The next decision day is Thursday. And though the court doesn’t tell us which cases are coming when, after Tuesday’s rulings we have a decent clue about who’s writing one of the biggest remaining decisions.
That is, Neil Gorsuch may be the author of 303 Creative v. Elenis, the case about a Christian woman who doesn’t want to make wedding websites for same-sex couples (though no one asked her to do so).
We can make this prediction because the court hears arguments during two-week sessions from October through April, each session producing roughly nine opinions that are generally split among the justices. After Moore v. Harper on Tuesday, in which Chief Justice John Roberts wrote for the majority rejecting the extreme “independent state legislature” elections theory, there’s just one case left from the December sitting, and Gorsuch is the only justice who hasn’t written from that sitting.
The Donald Trump appointee is a good bet, then, for writing 303 Creative, and it’s likewise a good bet that it will be a ruling in favor of that designer, Lorie Smith. Why? As Chris Geidner previously wrote for MSNBC, Gorsuch’s aggressive line of questioning during the December argument favored Smith’s position, which, along with other Republican appointees appearing sympathetic to her case, leads to the “foregone conclusion” that a majority will rule for her.
If this tea-leaf reading tip sounds familiar, we used it last month with Roberts and the big Voting Rights Act case from Alabama. The calendar at that point in the term suggested the chief as a possible author of that case, Allen v. Milligan. As it turns out, that prediction was correct (though surprisingly incorrect about the substance of the decision, because the longtime voting rights foe actually led the pro-voting rights side on that one). We may learn this week, then, if the Trump appointee Gorsuch is indeed the author of 303 Creative — and whether, like Roberts and the Voting Rights Act, the court has any more surprises in store on the substance of its decisions. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump investigations and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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