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The Supreme Court generally gives each Justice roughly the same number of majority opinions. For example, in a given sitting (roughly a month), the Court may hear nine cases. Each Justice would be assigned one majority opinion. If there are more than nine cases in a sitting, invariably some Justices will get multiple assignments.

This practice allows us to use the process of elimination to guess who will write the majority opinion in outstanding cases. This guess work is often unreliable. In some cases, where a case flips–that is, a dissent becomes a majority opinion–a Justice will lose his or her assignment. But, speculate, we can.

In the October setting, nine cases were argued. Malvo, which involved juvenile life without parole, was dismissed from the docket. The Title VII cases–Bostock and Harris–will likely be consolidated with a single opinion. From that sitting, Justices Ginsburg, Kavanaugh, and Chief Justice Roberts have not yet written a majority opinion. One of those justices was likely assigned Malvo, but lost the case. I am skeptical the Chief would give the junior justice the Title VII cases. My prediction: Roberts writes both Bostock and Harris. And Kavanaugh lost Malvo.

In the October sitting, ten cases were argued. Only one case is outstanding, and one only Justice has not yet written a majority opinion. My prediction: Chief Justice Roberts will write the majority opinion in Regents, the DACA case.

In the November sitting, twelve cases were argued. NY Rifle & Pistol was decided per curiam. Roberts wrote twice from this sitting, so he is probably done. There are no more outstanding decisions from that session.

In the January sitting, eight cases were argued. Only Espinoza, the Montana religious school funding case, remains outstanding. Chief Justice Roberts and Justice Breyer have not written from that session. My prediction: Roberts writes the majority opinion. Though it is possible that Breyer, who split the difference in the Ten Commandments case, draws a majority.

Nine cases were argued in February. In theory, each Justices should get one decision. So far, Ginsburg, Gorsuch, and Kavanaugh wrote from that sitting. It is too early to predict the rest of the cases. But I’ll predict that Roberts writes Seila Law.

Ten cases were argued in May. The faithless electors case will likely be consolidated in a single decision. (Though I think there are important distinctions between the cases). And the tax return cases will also be consolidated in a single decision. So there will only be eight majority opinions. One Justice will likely be left out. And we have two recusals, which helps us narrow it down. It is way too early to make any predictions. But I’ll make some anyway.

1. Roberts writes both tax-return cases, Mazars and Vance. Because of course he will.
2. Thomas writes Barr v. American Association of Political Consultants–his Janus decisions suggests a very pro-Free Speech view in the corporate realm. I am also keen to see how he approaches severability, in light of Murphy.
3. Ginsburg writes Booking.com, because she likes IP cases. And she can rule for her former clerk, Lisa Blatt, who argued it.
4. Breyer writes both faithless electors case, because he likes Democracy cases. (Sotomayor is recused in the Colorado case).
5. Alito writes the follow-up Little Sisters of the Poor case. (The original is always better than the sequel.)
6. Sotomayor writes Open Society. (Kagan is recused).
7. Gorsuch writes McGirt. The Court’s only Westerner likes Indian law.
8. Kavanaugh writes Guadalupe. He had a strong concurrence last year in the cross case.
9. Kagan is left without a majority opinion.

These predictions are worth what you paid for them. It is going to be a long June. And maybe July.

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Policing critics, Black Lives Matters activists, and a smattering of elected officials around the country want to pass significant policing reforms following George Floyd’s death at the knee of Minneapolis police officer Derek Chauvin. Right now, the biggest proposals are getting the most attention.

Rep. Justin Amash (L-Mich.) is in the middle of crafting a bill that would eliminate qualified immunity, assuming the Supreme Court doesn’t do it first. Qualified immunity is the legal doctrine that protects police officers and prosecutors from being sued for violating people’s rights.

Other big ideas include limiting the power and influence of police unions, who use collective bargaining not just to negotiate wages and benefits but also to control the disciplinary and appeal processes that make it next to impossible to fire bad cops. Reform advocates also want to build a national registry of police officers fired for misconduct and to repeal state laws that shield police discipline records from public view in order to keep bad cops from moving to new jurisdictions.

While many of these policies seem obvious, they will require an incredible amount of political will to implement. In the meantime, here are four more incremental reforms being considered in communities around the U.S.

In San Diego: No more “carotid restraints.” Police in San Diego are permitted to use a type of neck hold that cuts off blood to the brain and quickly renders people unconscious. Officers used these holds 70 times in 2019, according to the San Diego Union-Tribune.

Yesterday, San Diego Police Chief David Nisleit ordered a stop to their use, given the potential for harm. Nisleit told the Union-Tribune that he had been considering this change since 2018. The Union-Tribune reports that many cities prohibit chokeholds because they are dangerous and are disproportionately used against minorities. After Floyd’s death, a review of Minneapolis police tactics found that when officers used neck restraints to render somebody unconscious, half of the people they used them against were injured.

San Diego City Council members spoke positively about the change, but the San Diego County Sheriff’s Department is refusing to follow suit. Deputies will still be permitted to use the carotid restraints.

In New York City: Standardize police discipline and ban police chokeholds. In New York City, where police unions are powerful and Mayor Bill de Blasio is so weak that it took five years just to fire the NYPD officer who killed Eric Garner, it will likely take the city council to actually force changes.

After Garner’s death from a chokehold in 2014, a New York City council member introduced a measure that would criminalize the use of choke holds by police. De Blasio responded by threatening a veto. Now de Blasio says he’d approve the measure so long as it provides an exception if the officer is in a “life or death situation.”

In addition, another council member is proposing a “disciplinary matrix” to create a standard of discipline when officers engage in misconduct. Council Member Donavan Richards told NY1, “There is no written instruction on what a disciplinary action should be if an officer commits an infraction. This will set an example.”

New York’s lack of public transparency about police discipline contributes to the problem. New York state law shields police discipline records from public view. This can also lead to manipulation within the discipline system itself. When BuzzFeed journalists got their hands on secret New York Police Department disciplinary files, they found both cases where officers received slaps on the wrists for serious misconduct and cases where officers were harshly punished for minor infractions. One internal affairs investigator told BuzzFeed, “If 10 cops did the same exact thing that was bad, the outcome is different every time.”

In Colorado: Require police to intervene when fellow officers act out. Police unions are often quick to run to the defense of officers when they’re accused of misconduct. But when Minneapolis Police Officer Derek Chauvin was caught on video kneeling on Floyd’s neck for more than eight minutes, many unions made it clear they found Chauvin’s conduct indefensible.

In Colorado, three law enforcement groups—the County Sheriffs of Colorado, the Colorado Fraternal Order of Police, and the Colorado Association of Chiefs of Police—put out a joint statement Tuesday calling for state lawmakers to require that other officers intervene when they see something like what happened to Floyd.

The groups note that it’s already a duty for officers to intervene when he or she witnesses a fellow officer engaged in unreasonable force. They’re asking for state lawmakers to make it a statutory requirement, leaving officers who don’t intervene (like the three cops who stood by while Chauvin slowly suffocated Floyd) possibly facing criminal charges.

Democratic lawmakers in Colorado are working on a sweeping police reform bill intended to hit some of those big picture ideas to fight police misconduct: getting rid of qualified immunity, requiring body cameras for all officers, changes in use of force rules against suspects attempting to escape police, and a rule forbidding cops fired for excessive force from getting work in other cities’ police departments in Colorado. Maybe adding a component the unions actually support might help deal with the inevitable resistance.

In New Jersey: Launch a statewide use-of-force database. One of the challenges when fighting for reform is the general lack of data about how frequently police use force, under what circumstances, and what the justifications were. Heck, simply tracking who police officers kill in the line of duty is not easy, and efforts by the FBI to track that information nationally have been woefully inadequate.

In New Jersey, data journalists at NJ Advance Media put together their own database of use-of-force incidents within the state covering five years and collating more than 70,000 documents. There was no other statewide collection of use-of-force data and little analysis. After the NJ Advance Media “Force Report” database was released in 2018, state officials started a pilot project to launch an official government database to track the use of force in selected police departments. On Tuesday, New Jersey Attorney General Gurbir Grewal said that starting on July 1, all police departments in the state will be able to participate.

None of these smaller actions should be seen as substitutes for more sweeping reforms. But those are going to be big, long political battles against entrenched police unions with deep pockets. If reformers can convince legislators to implement incremental improvements right now, they should.

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On May 22, the medical journal The Lancet published a study that aimed to figure out how effective chloroquine and hydroxychloroquine, anti-malarial drugs, are in combination with certain anti-bacterial drugs for treating hospitalized COVID-19 patients. The researchers concluded that “each of these drug regimens was associated with decreased in-hospital survival.” In other words, patients treated with the drugs were more likely to die than those who were not. That study was based on data supplied by the medical data aggregation company Surgisphere which claims to have assembled a database of tens of thousands of COVID-19 patient records from hundreds of hospitals across the globe.

Almost immediately other researchers began questioning the accuracy of the Surgisphere database and therefore the accuracy of the study’s finding that the anti-malarials are ineffective—or worse, dangerous—at treating hospitalized COVID-19 patients. For example, an open letter signed by scores of outside researchers points out that Surgisphere has not released the code or data used in The Lancet study although the journal is a signatory to the Wellcome open research data guidelines. The outside researchers note further possible problems with Surgisphere’s reported data for COVID-19 patients: The data were not properly adjusted for confounders such as disease severity and doses used to treat patients. Researchers also suggest that Surgisphere is reporting data from implausibly high numbers of COVID-19 patients in Australia and parts of Africa.

The researchers are particularly concerned because several randomized placebo-controlled clinical trials of the drugs that could more clearly show the benefits or dangers of such treatments have been derailed in the wake of The Lancet study.

As a result of this storm of criticism, the editors at The Lancet have issued “an Expression of Concern to alert readers to the fact that serious scientific questions have been brought to our attention” about the article. The editors further note that “an independent audit of the provenance and validity of the data has been commissioned by the authors not affiliated with Surgisphere and is ongoing, with results expected very shortly.” The journal has also posted a minor correction to the article with respect to misclassifying Australian data, adding a supplemental table.

Surgisphere has now attracted the attention of data sleuths who are turning up oddities about the company including that its purportedly vast database does not appear to have been used in prior peer-reviewed studies and that it has a suspiciously low number of employees for a company that claims to have relationships with hundreds of hospitals.

For its part, Surgisphere maintains that its database is scientifically sound. “Mandatory audits happen at least four times a year, and everything from data acquisition to data reporting is independently reviewed by an external third-party auditor,” claims the company in an online statement. “Surgisphere has passed all of its prior audits with no major or minor nonconformities.”

In response to its critics, Surgisphere says that it is pursuing an independent academic audit of where its data come from, the database, and its statistical analysis “with all due haste.”

Given the severity of the coronavirus pandemic, the results of a truly thorough and transparent audit cannot come fast enough. The possibility that clinicians have been misled by shoddy research into avoiding the use of an effective drug to treat COVID-19 patients borders on scandalous.

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Earlier today, I blogged about Corona-cases that were mooted while Supreme Court review was pending. Towards the end of the post, I offered another way to think about South Bay United Pentecostal Church. (I wrote about that case here and here).

First, the Court approached that case with the wrong frame. It is a mistake to simply assess how “comparable” businesses are treated. This method reminds me of a routine feature of employment law. For example, a hispanic female alleges that she was denied a promotion because of her ethnicity. However, the employer responds that a similarly-situated hispanic female was given a promotion; therefore, the argument goes, the plaintiffs was denied the promotion for legitimate reasons. The parties will invariably dispute about whether the individuals are similarly situated: they have different roles, different levels of experience, etc. The Free Exercise Clause should not turn on this sort of ad hoc balancing test. Cases like Masterpiece Cakeshop suggest a far more skeptical standard of review is appropriate. Comparing churches to nail salons is a red herring.

Second, I drew a comparison between how governors have treated religious gatherings and how they have treated recent demonstrations. I wrote:

Governors labelled a constitutionally enumerated right, which was subject to the whims of an eleventh-hour change, as non-essential. They did not think prayer was life-sustaining or soul-sustaining. Do it on Zoom! But we know they labelled demonstrations as essential. That cannot be done on Zoom! They also labelled mundane commercial activities, which were open from day-one, as essential, even where the risk of spread was high.

New York Mayor Bill De Blasio articulated this perspective with candor. Reuvain Borchardt from the Jewish newspaper Hamodia asked De Blasio about this disparate treatmetn:

“The retail store owners have been closed for two months… People from attending houses of worship, our regular part of life, have been banned from doing so with more than 10 people. Now you’ve expressed solidarity with this particular protest cause, is that why it’s been given dispensation to disregard epidemic guidelines?” Borchardt asked. “Are we in a pandemic or not? And do we have one set of rules for protesters and another for everyone else?”

De Blasio admitted there was disparate treatment:

“When you see a nation, an entire nation simultaneously grappling with an extraordinary crisis seeded in 400 years of American racism, I’m sorry, that is not the same question as the understandably aggrieved store owner or the devout religious person who wants to go back to services. This is something that’s not about which side of the spectrum you’re on. It’s about a deep, deep American crisis… Sorry guys, there’s a world outside New York City. So we’re dealing with this.”

I think De Blasio’s statements make the case for viewpoint discrimination under the Free Speech Clause. But I also think his position undermines any pretense of neutrality with respect to the Free Exercise Clause.  When Jewish people gathered to celebrate a funeral, NYPD broke up the assembly, and the Mayor publicly criticized those groups. The risk of public gatherings is real

Robby Soave offers this commentary:

As a reminder, here was what de Blasio had to say to New Yorkers who had gathered to mourn a Hasidic rabbi last month: “My message to the Jewish community, and all communities, is this simple: the time for warnings has passed. I have instructed the NYPD to proceed immediately to summons or even arrest those who gather in large groups. This is about stopping this disease and saving lives. Period.”

This is not just hypocritical—it’s odious. Protesting against police violence is extremely important, and the unprecedented public outcry over Floyd’s death is a critical opportunity to send a message that reforms are needed. But to say that this cause, and only this cause, should be exempt from the lockdown is, at the very least, remarkably callous. Mourning a deceased person is no less important to that person’s loved ones than ending police brutality is for the thousands of people engaged in protest. (This should be doubly obvious, since in both cases we are talking about a person’s death as the root issue.)

The Governor of New Jersey offered a similar criticism:

“I don’t want to make light of this, and I’ll probably get lit up by everyone who owns a nail salon in the state,” Murphy said during his coronavirus briefing in Trenton on Monday. “But it’s one thing to protest what day nail salons are opening, and it’s another to come out in peaceful protest, overwhelmingly, about somebody who was murdered right before our eyes.”

New Jersey currently limits gatherings to 25 people in outdoor settings and 10 people indoors. Organizers of protests calling for reopening have been charged in recent weeks with violating Murphy’s executive orders.

“I put those into different orbits,” said Murphy, a Democrat who has said Floyd’s death “highlights systemic racism and the stain that slavery still leaves in our country today.”

This double-standard demonstrates hostility towards religion, at a far greater level than the errant comments in Masterpiece Cakeshop. The Free Exercise of religion simply isn’t as important to these governors and mayors. And that fact ought to move the case from Smith‘s rational basis test to Lukumi‘s strict scrutiny.

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