PROGRAMMING NOTE – OT’23 SUNSET EDITION

 

(Posted June 12, 2024) Mid-June is here, and that means that SCOTUS is sandpapering the rough edges off opinions in its high-profile cases from October Term 2023. The Court traditionally clears its docket by approximately the end of June, though it peeked into July during pandemic times.

With just eleven more court days between now and the end of the month, and nearly half of the OT’23 appeals still undecided, courtwatchers will have plenty to anticipate. The next decisions will arrive tomorrow and Friday, June 13-14. While the Court hasn’t announced future opinion release dates yet, I expect to see them on the next two Thursdays, June 20 and 27, plus a smattering of additional days that we can’t predict now.

While I don’t normally cover decisions by Those Other Robes, I may offer analysis of one or two of the bigger decisions still to come. There’s plenty to choose from with multiple appeals on abortion, guns, and administrative law (sexier than the usual admin-law cases). The Court also faces tough choices in cases involving bankruptcy law, environmental protections, and localities’ efforts to address homelessness. There’s also that little question whether the President is above the criminal law. It won’t be a slow news month.

As usual, I’ll send you over to the good folks at SCOTUSblog for fuller treatment than I can provide of the Supreme Court of the United States. This time won’t be an exception, though SCOTUSblog has suffered from staff cuts this year and their coverage isn’t as robust as it has been in past years. Meanwhile, I’ll check the wire as usual tomorrow for any new decisions that may arrive from Ninth and Franklin. Hope to see you, if only metaphorically, then.

 


DISTRIBUTING THE SUPREME COURT’S WORKLOAD

 

(Posted June 7, 2024) You know me; I see something that looks like a statistical anomaly and I’ve just got to check out the data to see if it pans out. Yesterday I decided to dig into the log of Supreme Court of Virginia decisions to see how The Robes are dividing the chores of writing published opinions.

This review is limited to published opinions because we can’t know who writes the unpubs; the court doesn’t reveal that information. I can figure out some of the authors based on their writing styles, but I’d prefer not to interject my deductions into an otherwise exact count. I started with the month of October 2022 because that’s when the court’s current lineup began to crank out opinions.

This isn’t something that I follow from month to month, but fortunately, it’s very easy to check the opinions. Here’s what I found over that span; these are the numbers of published opinions of the court – dissents not included – by author:

  • Kelsey 11
  • Russell 10
  • McCullough 9
  • Powell 8
  • Mann 7
  • Chafin 2
  • Goodwyn 1

That’s 48 published opinions, about seven per justice on average. For the sake of completeness, we’ve seen eleven unpubs in the span I studied, and no opinions from senior justices.

For a long, long time, the court has insisted that opinion assignments are matters of pure chance. It starts with a random draw out of former clerk David Beach’s hat to see who gets the first case on the docket. After that, the appeals are distributed in the justices’ seating order around the conference-room table until all appeals on the docket are assigned to someone.

Let’s leave aside for now the fact that docket draw these days almost never gets all the way around the table because of the justices’ parsimony when it comes to issuing writs. This is an essay about distribution; not volume. The point is that, in theory, each justice should get a reasonably equal share of the workload.

I concluded several years ago that horse-trading goes on up there, as one justice swaps the Smith appeal for the Jones case because of an interest in the subject matter. Court insiders might fuss about that, but I’ve seen too much evidence to acknowledge the possibility that no such trades occur.

Yesterday’s counting process confirmed the bare suspicion that led me to review these numbers: The chief and Justice Chafin have been almost completely shut out of the opinion-writing process recently. Neither has written an opinion of the court this year, and the chief didn’t write one in 2023, either. He last spoke for the full court twenty months ago, at the very beginning of my survey.

I believe in coincidences only over a very short time frame. With a year and a half of data, this can’t be a matter of chance anymore. It’s certainly possible that those two drew some of the unpubs, and indeed, I believe that that’s the case. But even if they got all eleven – which I seriously doubt – they still got “skipped” multiple times on docket-draw day.

What gives? The candid response is that I don’t know. I see no statistics-based explanation for this much of an imbalance over this much time, and I firmly believe that there’s a subjective component that I, as a guy who’s always been outside looking in at the court, cannot describe. In theory, these two justices could be more likely than their colleagues to urge unpublished status for their assigned cases. That’s a plausible explanation, but I won’t insist that it’s true because I have no evidence for it.

 


ANALYSIS OF JUNE 6, 2024 SUPREME COURT ORDER

 

 

(Posted June 6, 2024) Today is the 80th anniversary of the most important day of the Twentieth Century. On this date, over 150,000 men summoned far more courage than I have ever had to call upon over the entire course of my life, and embarked across roiling seas to land on well-defended beaches in Normandy. Today we honor their sacrifice and their determination.

Some of you may know that a single woman accompanied the landing force. Journalist Martha Gellhorn, denied permission to sail, stowed away on a hospital ship, hiding in a bathroom. When the ship arrived across the Channel, she disguised herself as a litter bearer and waded ashore, with no one’s suspecting her sex.

Before D-Day, Gellhorn might have been best known as the estranged wife of Ernest Hemingway. Nowadays she’s better known as one of America’s great journalists. Today we can recall her for her sheer guts.

 

The Supreme Court announces one published decision this morning. Westrick v. Dorcon Group, LLC involves a ritzy neighborhood in Loudoun County where ten-acre lots are the norm. A developer created the subdivision in 1981, establishing 30 lots, one of which – Lot 5 – comprises 40 acres and some historic properties.

The subdivision document included a set of covenants that prohibited commercial uses on 26 of the lots. It expressly excluded four lots, including Lot 5, from that restriction. It also stated that “these restrictions may be excepted, modified, or vacated in whole or in part at any time upon an affirmative vote of the owners of twenty[-]three (23) lots in said subdivision.”

Early in March 2020, Dorcon Group bought Lot 5, planning to set up a wedding-venue business and a bed-and-breakfast facility. The new neighbor’s plans didn’t sit well with most of the other residents, so two months later, the clerk of court received for recordation an amendment to the subdivision deed. It bore the signatures of the owners of 25 lots, so they plainly cleared the vote threshold. The amendment barred certain commercial activities, specifically including operation of a wedding venue, in all 30 lots.

The 25 signatories to the amendment evidently hadn’t consulted Dorcon when considering this new course of action. Recognizing a NIMBY maneuver when it saw one, Dorcon sued in circuit court, seeking declaratory and injunctive relief against the new restriction.

The circuit court ruled in favor of the neighbors. It held that the original deed contemplated actions like this, and a supermajority of the owners had the right to modify the restrictions. That, the court ruled, included the right to expand the existing restrictions to cover the previously exempted lots.

The Court of Appeals felt otherwise. In an unpublished opinion, the court reversed, holding that the word modify doesn’t include inserting an entirely new restriction.

Today the Supreme Court agrees and affirms the judgment in favor of Dorcon. The justices note that restrictions must be narrowly construed, and that courts resolve any ambiguities in favor of the free use of land. Additionally, the court observes that while the other owners may modify the restrictions, the subdivision document doesn’t allow them to modify the exceptions to those restrictions.

Accordingly, wedding bells will soon ring out in this corner of Loudoun. Today’s order is unanimous; as with most published orders, we can’t know which of The Robes wrote this one.

*   *   *

This is the third decision from the six appeals argued in the April session. We have three unresolved cases from February, and yesterday’s two from the June session make eight pending appeals in all among the argued cases.

I mention this because the stats geek in me will be following the court over the summer to see if the justices will decide all eight of those appeals before the September session convenes. That would give the court a clearance rate of 100% for the first time in my 19½ years of covering appeals.