Tuesday, June 10, 2014
Is the Supreme Court Rushing to Judgment?
One of the great things about the Supreme Court is that it adheres to self-imposed deadlines. Each "term" basically starts in early October and ends in late June, before the justices begin their summer recess. This annual rhythm guarantees that cases do not languish undecided, while giving parties and the press some sense of when a result will issue. But we all know that strict, arbitrary deadlines aren't always desirable. Sometimes, doing a good job means taking a little longer than planned. And, as work piles up and deadlines loom, mistakes are more likely to happen. If the Court is rushing to judgment this month, then the results could fundamentally shape the law.
The Court's end-of-term deadline produces a predictable flurry of activity around this time of year, when the last wave of majority and dissenting opinions is being circulated inside the Court. The cases most obviously affected are the ones heard in late April. For instance, roughly seven months passed between the oral argument in Bond v. United States and last week's published opinion in that case. By contrast, the Court has only a little over two months from argument to issue decisions in the cases heard during the April sitting. In fact, the rush is even more acute than that because, as Professor Richard Lazarus recently noted, the Court typically circulates all draft majority opinions no later than the beginning of June. This year, for example, the Court's April sitting included the complicated cell-phone search cases United States v. Wurie and Riley v. California (which I blogged about here and here). The first draft majorities in Wurie and Riley were likely written in just about a month -- and at a very busy time of year. Dissent drafts circulate even later, creating the possibility for major swings in reasoning and even in result as July approaches.
The effects of the end-of-term rush are hard to pin down. On its face, the Court's schedule creates an arbitrary difference in the way that early- and late-term cases are treated. As Lazarus suggests, the Court might be more prone to making relatively small (but still potentially significant) errors during the final weeks of the term, when attention is divided and time is short. In other cases, the Court might fail to reach a majority, or write a fuzzy opinion where -- provided more time -- a clearer test or analysis might have been possible. And, of course, it's possible that the Court might be more likely to issue fundamentally ill-considered opinions during the end of the year. Back in 1979, Professor Henry Monaghan opined that "the Court hears cases far too late in its term" and that "the pressure to 'get these out' inevitably produces well-known intellectual disasters in every term." I imagine that most readers can think of their own suspected examples of late-term decisions that could have used a little more time to bake.
Assuming that the Court does sometimes rush to judgment, what is there to do about it? In recent years, the Court has tried (with varying success) to front-load its calendar, partly in order to reduce end-of-term pressure. This year, for instance, the Court approached June having already issued a number of major cases argued in October and November. In a similar vein, the Court might shorten, move earlier in the year, or even cancel its April sitting. Even more interestingly, the Court could encourage symmetrical treatment of all cases year-round by adopting a new norm that all decisions should issue during a set period allowing adequate deliberation -- say, within 100 days of argument (assuming that the time between briefing and argument remains fixed). That approach would have the added advantage of preventing early cases from growing overlong and being over-thought. Finally, the Court could do the unthinkable: shorten its summer recess.
The above is cross-posted from Re's Judicata.
I would think they could just hold cases for decision after the summer recess. For example, the Court could adopt a practice that if an April case does not have an opinion of the Court by date X (say, June 10) it will instead be handed down on the First Monday of October, as the Term ends. That way the Justices can continue to ponder it over the summer but will still have a deadline in October.
Posted by: Orin Kerr | Jun 10, 2014 10:52:14 PM
Neat idea! Still, I think that it has some possible shortcomings. For example, the Court is probably reluctant to publicly pick out "problem cases," and the justice whose opinion gets bumped back might be none too pleased. Also, the reform wouldn't capture problems that arise after June 10, such as when late-term dissents circulate. This all makes the reform less appealing in itself and may also create pressure to join early-June drafts so as to avoid triggering the rule, even if the end-of-term rush is taxing the Court.
Posted by: Richard | Jun 10, 2014 11:34:26 PM
Why any deadline? The circuits don't have deadlines. When's the last time the D.C. Circuit decided a major case in just 2 months from argument? I think it's perfectly appropriate and proper for the Court to take as much as a year writing opinions on really important and difficult issues.
Posted by: Asher | Jun 11, 2014 12:16:02 AM
Richard, an alternative approach would be for the Chief to make a decision during the post-argument conferences in April cases that a particular case is a "problem case" that should be handed down in October instead of June. The outgoing law clerks who usually spend the transition month of July just hanging out in the courtyard could instead spend writing a first draft so the new clerks won't be totally lost.
Posted by: Orin Kerr | Jun 11, 2014 12:24:37 AM
"The outgoing law clerks who usually spend the transition month of July just hanging out in the courtyard could instead spend writing a first draft so the new clerks won't be totally lost."
Yikes. Walking into a case in media res sounds like a recipe for more confusion, not less. The new clerk would have no idea what stuff was in there specifically because the justice wanted it, and what stuff was the former clerk extrapolating based on the justice's general views on the case.
It was for pretty much this reason that my judge had a general rule that any draft opinions had to be to the point where he and his admin could take over and finish them prior to your term ending. Anything that would be less polished than that should be left for the new clerk to write from scratch.
Posted by: My $0.02 | Jun 11, 2014 8:38:28 AM
I suppose my question is why, now that Justice Brennan is off the Court, do they stop before July 4th at all? Brennan needed to catch the July 4th ferry to Nantucket, and from what I've been told, that was the reason for the development of the hard-stop.
Why not work through the summer? We have air conditioning now! Recesses are outmoded.
And yet, if we trust the justices and clerks to take a break--- why can't we trust them to gauge whether or not they are overworked? I don't know how we can assess the quality of their work, not in any objective sense.
Although, I recently read something about post-issuance revision, sometimes more than a year later? Could one assess the frequency and depth of this practice, comparing when the opinion comes down in the term?
Posted by: AndyK | Jun 11, 2014 10:09:25 AM