Wednesday, June 25, 2014
At this time of year, oral arguments are long over at the Supreme Court, but the justices nonetheless convene to announce opinions from the bench. This practice is unusual in the US judicial system. Federal courts of appeals, for example, do not orally announce their opinions. Moreover, the parties whose interests are being adjudicated have no way of knowing when their cases will be announced and so are rarely in attendance. Yet, tomorrow, the justices will ascend the bench anyway in order to read summaries of the Court's published opinions and, perhaps, salient dissents. Why would they do this? One important reason is to influence the public. Through opinion announcements, the normally apolitical Court sometimes acts much like a political institution -- with all the benefits and risks that that role entails.
On the surface, the Court's opinion announcements are simply wholesome celebrations of America's civic religion. There is pomp ("Oyez!"), circumstance (regal curtains), and grandeur (an array of somber marble facades). On each opinion day, a very small slice of the public gets to see a bit of history being made. Visitors also enjoy the unusual experience of having a direct impression of the justices, particularly those who happen to speak that morning. This traditional and generally banal picture is especially apt during early and mid-term announcements, which are typically free of the most controversial cases. To the extent that opinion announcements function this way, they are a cross between a civics lesson and the ceremonial turkey pardoning at Thanksgiving. Consistent with that view, Justice White often announced the judgment of the Court in a matter-of-fact style, without rhetorical embellishment or even significant explanation.
From another standpoint, however, the opinion announcements are canny press conferences. They give the justices a chance to gather members of the Supreme Court press corps and speak directly to them all at one moment. This gives those justices who speak a chance to accentuate certain details and shape media coverage. As if to ensure that the bench announcement garners attention, the Court releases full opinions online only after a short delay. The results can be interesting. Consider the Chief Justice's announcement of the healthcare case, NFIB v. Sebelius. Because of the way the Chief explained the opinion of the Court, the unusually A-list audience of in-court attendees was initially led to believe that the healthcare act had been invalidated. The audience had the experience of thinking the Act was doomed, and then of realizing that the Chief had sustained it.
Earlier this week, Justice Scalia used an opinion announcement to cut to the heart of a technical decision. While explaining the Court's opinion in Utility Air Regulatory Group v. EPA, Scalia made a prominent declaration that appeared nowhere in his opinion: "It bears mention that EPA is getting almost everything it wanted in this case." This statement shaped early media coverage, which painted the decision as largely a victory for the EPA, even though the Court had struck down part of the agency's regulation in a 5-4 ruling. To similar effect, the Chief Justice (for the Court) and Justice Breyer (in dissent) went out of their way in their oral statements in McCutcheon v. FEC to emphasize their respect for one another's opinions -- thereby helping to preserve the Court's public image in the face of yet another 5-4 campaign finance decision.
Using the same technique, dissenting justices sometimes speak from the bench in order to alert and rally public opposition to the majority's opinion. These oral dissents -- which aren't typically shared in advance with other justices -- can diverge from the written dissents in marked ways. For example, in Parents Involved v. Seattle School District, only Justice Breyer's dissent from the bench included the memorable line: “It is not often in the law that so few have so quickly changed so much.” This unpublished remark likely surprised other justices, and some accounts indicate that members of the majority reacted to it with consternation. (For more, see Lani Guinier's magisterial treatment of oral dissents here.) Remarks like these illustrate the special tensions that sometimes result from uncoordinated joint press conferences.
It's hard to shake the sense that opinion announcements, particularly the high-voltage ones near the end of the term, resemble political events. This is not to say that the opinion announcements are partisan. Rather, opinion announcements are political in the sense that they offer a uniquely powerful opportunity for the Court to interface more directly with the polity, through the media. And though the justices increasingly engage the public through speeches and books, those avenues of communication are no substitute for immediate commentary on the decisions that form the heart of what the justices do. Opinion announcements give the justices a special opportunity to be heard outside their marble palace.
The virtue of opinion announcements depends in part on their goal. To the extent that the justices aim to educate the public and help it to understand and evaluate the business of the Court, opinion announcements are all for the good. And success at that educational mission will inevitably entail persuasion, as well as (one hopes) lively writing. But it's possible to take a good thing too far. To the extent that the justices use their bully pulpit not just to advance legal arguments but to take an active role in public debate, they risk casting the judicial branch as just another part of the political scene in DC -- to the detriment of the Court's long-term image. So when the justices read from the bench this week, they won't just be addressing discrete cases of great importance. They'll also be helping to define the Court's distinctive institutional role.
The above is cross-posted from Re's Judicata.
The release of opinions is like a fireworks show. The show goes on for awhile with a explosions spaced out for 30-40 minutes, then in the last 3-5 minutes everything that is left gets shot off all at once. We get a trickle of opinions from November to now, then we'll get, potentially, 10 in the last week.
Posted by: Howard Wasserman | Jun 25, 2014 7:43:10 AM
It seems to be a vestige of the British custom that each judge on an appellate court delivers an oral opinion about the case.
Posted by: David Levine | Jun 25, 2014 3:00:09 PM