Yesterday morning, the Supreme Court issued seven opinions, but Christian Legal Society v. Martinez was not among them. The CLS case is now the only case from the Court’s April sitting that has not been decided. There are still four outstanding decisions from cases heard this term—CLS, Bilski v. Kappos (patents), Free Enterprise Fund v. Public Company Accounting Oversight Board (Sarbanes-Oxley and separation of powers), and McDonald v. City of Chicago (Second Amendment) . The Court is expected to hand down the remaining decisions on Monday morning beginning at 10:00 a.m. EDT.
We have previously engaged in a couple of games of Supreme Court Bingo to guess who will be writing the CLS opinion. Jordan predicted that it would be Chief Justice Roberts, Justice Ginsburg, or Justice Stevens, as none of them had written an opinion from the April sitting.
Now that we have more information, we can fill in our “bingo card” a little more, but the outcome is still far from certain. Chief Justice Roberts wrote the 8-1 majority decision in Doe v. Reed, a case litigated by ADF ally Jim Bopp. That means that the only two justices who have not written an opinion from the April sitting are Justice Ginsburg and retiring Justice Stevens. It is not unheard of for a justice to write two opinions from one sitting–Justice Stevens wrote two opinions from the March sitting, for example–but the Court generally tries to distribute the burden of opinion writing evenly.
It will be interesting to see who writes the CLS opinion–if it is Justice Stevens, he could be issuing his very last opinion as a Supreme Court justice, and given that he only asked one question during the oral argument, it is hard to predict what the outcome would be unless one looks at his prior opinions involving religious speakers. (He has not frequently been favorable to religious freedom.) Justice Ginsburg did not seem sympathetic to CLS during oral argument. (Check here and here for analysis of the oral argument). But it is also possible that another justice could be writing the opinion.
ADF lawyers Greg Baylor, Jordan Lorence, and Casey Mattox will be present in the courtroom on Monday to hear the proceedings. Please continue to pray for a just outcome in this case, and check back here on Monday morning for an update. We will have coverage and commentary starting within 30 minutes of the opinion being issued.