My Predictions for SCOTUS This Year

A few days ago I posted an overview of big decisions on the way from the Supreme Court. Someone suggested that I use a table to predict how the court will rule on them versus how I think the court should rule on them. I aim to please.

Of the fourteen cases, it turns out I’m in firm agreement with half of my predicted rulings, so as usual, I suspect that SCOTUS will annoy and satisfy me in more or less equal measure. But take my predictions with a thunder shower of salt. Though I’ve been prescient in the past with SCOTUS rulings, I’ve also been surprised by unexpected twists from this justice or that one. Ironically, the easiest prediction is one I feel so unsure about: the first one on my list. I can say with great confidence that Chevron will be overturned 6-3, that Gorsuch will write the ruling, and that Kagan will be the one to write a fiery dissent.

 

Case	Subject	How I predict the court will rule	How I think the court should rule
Loper Bright Enterprises v. Raimondo	The Chevron Doctrine: the power of federal agencies over the courts and legislature	Chevron is overturned. Judges and lawmakers do not have to defer to federal agencies when statutes are ambiguous and unclear. It’s the role of the courts to do that. 6-3 ruling, written by Neil Gorsuch. Stinging dissent written by Kagan.	I’m honestly not sure. In cases where expertise is needed (especially on issues involving the environment, climate change, and new technologies), I’m pro-Chevron. But federal agencies are notorious for shafting the little guy (especially when it comes to health insurance, immigration, social security benefits, etc.), so the other half of me is anti-Chevron and will applaud the court’s ruling.
Moyle v. United States	State abortion bans vs. a federal law that ensures patients can receive emergency care. (The federal law requires hospitals to treat patients experiencing an emergency medical condition with stabilizing care. Pregnant women can face a wide range of threatening conditions for which emergency abortion care may be a necessary stabilizing treatment.)	Hospitals do not have to provide women with emergency abortion care unless the woman’s life is in danger. 6-3 ruling, written by Samuel Alito.	Hospitals do have to provide women with emergency abortion care. Federal law trumps any state law.
Food and Drug Administration v. Alliance for Hippocratic Medicine	Restrictions in access to the abortion pill	Access to the abortion pill should not be restricted. 7-2 ruling, with Alito and Thomas dissenting. [Update: Decided on June 13. As I predicted, but a 9-0 ruling. Even Alito and Thomas voted to retain access to the abortion pill. If the plaintiffs had the standing the sue, however, the ruling would not have been unanimous.]	As it will.
Murthy v. Missouri	Governmental interference in social media platforms: improperly coercing private action and effectively deputizing platforms to function as state actors	The federal government’s request that private social media companies take steps to prevent the dissemination of purported misinformation (anti-vaccine content) transformed those companies’ content-moderation decisions into state action and thus violated users’ First Amendment rights.	As it will.
Moody v. NetChoice, and NetChoice v. Paxton	Laws that restrict social media platforms from censoring and moderating points of view	Hard to say. The justices seem equally unpersuaded (and rightly so) by the absolute positions of both sides. (1) On the one hand, users of big-tech platforms do not have First Amendment rights against corporate censorship, big-tech or otherwise. People only have First Amendment rights against governmental censorship. (2) On the other hand, the idea that big-tech companies are like any private business and thus have First Amendment rights to regulate speech on their platforms however they see fit is also wrong. Big-tech companies are not like any other business and they control the flow the flow of information more than any government ever dreamed of being able to do. It’s precisely the First Amendment rights of the big-tech companies that are under a question mark and need to be addressed. How the justices will do so remains murky.	Big-tech social media platforms cannot have Section 230 legal immunity privileges if they wish to retain the right to function as editorial sites (to censor and moderate content based on point of view). In other words, social media platforms cannot claim Section 230 immunity from liability for others’ speech and then claim that they are speakers with full First Amendment rights over the speech of others. It’s wrong and hypocritical that platforms have simultaneously demanded First Amendment protection to regulate speech as they see fit on their private platforms, and then be given statutory protection for the same conduct.
Alexander v. South Carolina State Conference of the N.A.A.C.P.	Racial gerrymandering	The legislature of South Carolina’s redistricting map, which has the effect of moving tens of thousands of black voters to a different district, does not constitute an impermissible racial gerrymander. 5-4 ruling. Dissent from Gorsuch, Kagan, Sotomayor, and Jackson. [Update: Decided on May 23. As I predicted, but a 6-3 ruling, with Gorusch in the majority rather than the dissent. Alito wrote the opinion, Kagan wrote the dissent.]	The legislature of South Carolina’s redistricting map most certainly does constitute an impermissible racial gerrymander.
National Rifle Association of America v. Vullo	Governmental advocacy vs. coercion	The state of New York’s discouragement of companies from doing business with the National Rifle Association after the Parkland school shooting constitutes coercion in violation of the First Amendment. 8-1 ruling, with Sotomayor dissenting. [Update: Decided on May 30. As I predicted, but a 9-0 ruling, and what a surprise, Sotomayor (who I guessed might dissent) actually wrote the ruling.]	As it will.
United States v. Rahimi	Gun ownership	A federal law, which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, does not violate the Second Amendment. 9-0 ruling. [Update: Decided on June 21. As I predicted, but an 8-1 ruling, with Thomas dissenting.]	As it will.
City of Grants Pass v. Johnson	Local laws used against people who camp on public streets and parks	Laws that make it illegal to camp on sidewalks, streets, parks or other public places do not violate the Eighth Amendment’s protection against cruel and unusual punishment. 7-2 ruling, with Sotomayor and Jackson dissenting.	As it will.
Ohio v. Environmental Protection Agenc	Interstate pollution.	The Biden administration’s Good Neighbor plan — which requires factories and power plants in Western and Midwestern states to cut air pollution that drifts into Eastern states — is put on hold. 6-3 ruling.	The Good Neighbor plan should proceed without interference.
Fischer v. United States	Obstruction charges for the Capitol attack	A man involved in the Capitol attack on January 6 cannot be charged with obstructing the congressional certification of the 2020 election results. 6-3 ruling.	The man can and should be charged with such obstruction.
Trump v. Anderson	Presidential ballot disqualification	Trump has the right to be on the ballot in each state unless the federal government finds him guilty of insurrectionist behavior. States only have the power to disqualify state officials, not federal ones. 9-0 ruling.	As it did. (Decided on March 4)
Trump v. United States	Immunity of former presidents from criminal prosecution	Hard to say. On the one hand, many of the justices seem strongly averse to Trump’s sweeping claims about immunity that would put the president above the law, and which would embolden future presidents to commit crimes and use their office as a shield. On the other hand, justices seemed cognizant of the need for some immunity, lest a president become a constant target of political opponents when he leaves office. I predict that Roberts, Thomas, Alito, Gorsuch, Barrett, and Kavanaugh will vote to remand the case back to the trial court for further fact finding, and that Jackson, Kagen, and Sotomayor will vote that Trump lacks immunity and that he should be put on trial without further fact finding.	Trump should be put on trial without further ado. Regarding immunity claims, the question to me is the extent to which some official presidential acts might be protected from criminal prosecution, and that is a lot to address. I hope the justices make a good stab at it.
Vidal v. Elster	T-shirts making fun of Trump (free speech)	A federal statute (the Lanham Act) which prohibits the use of a living individual’s name in a trademark without their consent violates the First Amendment. 9-0 ruling. The ability to criticize public figures and politicians is a core tenet of the First Amendment, and there is plenty of recent precedent upholding that right. In 2017 the court confirmed that trademarks are protected speech under the First Amendment, and that the part of the Lanham Act that bars registration of disparaging remarks violates the applicants’ free speech. In 2019 the court again ruled against preventing registration of trademarks that an organization might believe to be immoral or scandalous. [Update: Decided on June 13. I was wrong here. The court ruled 9-0 that the Lanham restriction does not violate the First Amendment.]	The Lanham Act violates the First Amendment.
Garland v. Cargill	Bump stocks on semiautomatic guns.	Bump stocks are not illegal machine guns because they don’t make the weapon fire more than one shot with a single pull of the trigger. [Decided on June 14 by a 6-3 conservative majority over the liberals. I was unaware of this case and had not made any predictions about it.]	Bump stocks should be illegal. There is no functional difference between a machine gun and a semiautomatic firearm with a bump stock.
Diaz v. United States	Prosecutor testimony about a criminal defendant’s state of mind	Expert testimony that “most people” in a group have a particular mental state is not an opinion about the defendant per se, and is thus admissible. (It does not violate Federal Rule of Evidence 704(b).) [Decided on June 20 by a 6-3 vote — 5 conservatives (Thomas, Roberts, Alito, Kavanaugh, Barrett) and 1 liberal (Jackson). Gorsuch wrote the dissent, joined by Kagan and Sotomayor. I was unaware of this case and had not made any predictions about it.]	Expert testimony that “most people” in a group have a particular mental state is most certainly an opinion about the defendant, and should thus be inadmissible. Otherwise prosecutors can put experts on the stand — those who apparently have the convenient ability to read minds — and let them hold forth on what “most” people like the defendant in question think when they commit certain acts. No authority exists for allowing this kind of charade in criminal trials — and certainly not in Rule 704.