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Tuesday, May 21, 2019

Waiting for Nieves v. Bartlett

SCOTUS heard argument in Nieves v. Bartlett on November 26, the first case of the December sitting. This means it will be more than five six months from argument to decision, even if the case comes on the next opinion day (Tuesday, May 28). It was obvious from the argument that the Court was divided and searching for a middle ground that would leave officers free to handle disorderly conduct situations while not leaving police free to arrest government critics for minor violations, while also not having lots of cases going to trial. The long drafting time suggests a divided court and multiple opinions.

The Court heard ten cases in this sitting; seven have been decided and three remain--Gamble (Fifth Amendment separate sovereign), Carpenter (how much of eastern Oklahoma remains Indian reservation), and Nieves. Roberts and Alito have not written anything from this sitting. Both seemed inclined towards the officer in Nieves.

Posted by Howard Wasserman on May 21, 2019 at 11:49 AM in First Amendment, Howard Wasserman | Permalink

Comments

A 4-4 split means no opinion for the Court. So now we have two opinions left from the sitting (Gamble and Nieves) and two Justices (Roberts or Alito) to write one each.

Posted by: Howard Wasserman | May 24, 2019 6:57:25 AM

Correct me if I'm wrong, but with Gorsuch recused on Carpenter, isn't there a real possibility of a 4-4 split? Would that complicate questions of which justices might write which opinions?

Posted by: a non | May 21, 2019 4:01:43 PM

I meant to say six originally (since next Sunday marks six months); I corrected it.

Posted by: Howard Wasserman | May 21, 2019 3:11:43 PM

"SCOTUS heard argument in Nieves v. Bartlett on November 26, the first case of the December sitting. This means it will be more than five months from argument to decision, even if the case comes on the next opinion day (Tuesday, May 28)."

Maybe you knew this (but see Grice's maxim of quantity), but it also means that it will be more than six months from argument to decision, not just five.

Since there are three cases outstanding from December, we know that at least one Justice is writing more than one opinion, though it does not follow that at least one of the outstanding opinions will be written by someone who already wrote, as one of the two Justices who hasn't could write two opinions. Statistically, there's probably a 2/3 chance (or a little greater given the possibility that Roberts or Alito is the Justice who's doubling up) that this is by one of the two who hasn't written yet, but if I had to bet, Roberts writes Gamble, Alito writes Carpenter, someone else writes Nieves.

Posted by: Asher Steinberg | May 21, 2019 2:59:04 PM

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