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Tuesday, May 29, 2018

SCOTUS Term: Where are the opinions?

I'm happy to be back at Prawfs for another end-of-term Symposium. I thought I'd kick things off with a short post that's more of a complaint. For the second week in a row, I got set up with my computer at a coffeeshop at 9am central time, ready to start digesting what I was sure would be a big batch of opinions. And for the second week in a row, the Court gave us only two opinions (though today, the Justices also DIG'd another case, City of Hays v. Vogt). One of today's two opinions, Lagos v. United States, is only 8 pages long. While Collins v. Virginia, an interesting Fourth Amendment case, is quite a bit meatier (there's a lot to digest in Justice Thomas's interesting concurrence challenging the application of the Fourth Amendment exclusionary rule to the states), that's not a very good showing for this point in the term. (How exactly all that added up to two boxes' worth of opinions isn't clear.) As Steve Vladeck noted on Twitter, the Justices now have 29 opinions left to decide over four scheduled hand-down days in the next month (June 4, 11, 18, and 25). The Court will likely add one or two additional days (perhaps a Thursday or two as the end of June approaches). But even so, that's a lot of work to squeeze into a small amount of time. Thoughts after the jump.

As of a couple weeks ago, the Court was setting records for the slow pace of opinions according to Adam Feldman of Empirical SCOTUS. With only four opinions since then, that almost certainly remains true. We've puzzled over the explanation for the slowness on First Mondays, but haven't reached any consensus. Justice Gorsuch's apparent proclivity for writing separately seems likely to be part of the story, as is the Justices struggling with some really big cases like the pending gerrymandering challenges and the challenge to the President Trump's entry ban. But we may not get a full explanation until someone releases papers from this Term, which could be decades away (though I have some hope that when she leaves the Court, Justice Ginsburg will release hers more quickly than other Justices who have left the Court recently). 

The Court could just stretch out the Term by releasing opinions in July (or even later). But I wouldn't bet on it, even this Term. The Justices are extremely reluctant to do so; most of the Justices plan vacations in Europe or other similarly pleasant locations, and they are not going to be happy about changing those plans. Instead, we'll most likely just see a mad dash to the finish.

All this is no doubt making for a very difficult June for the Justices, law clerks, and Court staff. And it will likely mean that the quality of the opinions will suffer a bit; the big rush over the next four weeks will probably mean that some opinions get less scrutiny than they would if they were being issued in early December. That is especially true of the remaining opinions that are less high profile than, say, Masterpiece Cakeshop. That's unfortunate, since the cases that aren't headline-grabbing can still be really important for the lower courts (as Will Ortman and I have argued). Leaving all the big cases for the very end of the Term is also bad for the public, I think, as it means that the slightly smaller cases get less scrutiny in the media. 

For that reason, every June we see some kind of a race to the finish—though this June looks to be even worse than usual. Can this problem be avoided? Steve Vladeck suggests that "Even if the Justices are steadfastly committed to being done by the end of June, they can do lots of other things, like spread April arguments over the rest of the Term, so that things aren’t so compressed at the end." I think this would be a good goal, but I suspect that even if the Justices cancelled the April sitting entirely, we'd still see the same dynamic. Writing Supreme Court opinions is challenging; and Supreme Court justices, for all their achievements, are still just people, with ordinary human faults like a tendency to procrastinate. It's easy for the Justices to obsess endlessly over the language in an opinion, and when there is a dissent or two, it's easy for each side to keep revising endlessly to make sure that the opinion is as persuasive as possible. Deadlines are great motivators, though, and I think the end-of-Term deadline is what makes the Justices finally stop tinkering and just get the opinions out. Getting rid of the April sitting would probably just spread the tinkering stage out for longer, without reducing the end-of-Term madness. 

Another alternative would be to just get rid of the whole idea of the summer recess entirely. The Justices would hate that (no more "teaching" in Europe?). But I think the Summer recess serves an important function for the Court. The opinions the Court releases at the end of the Term tend to be particularly divisive, touching on the most contested issues like abortion, church and state, and so on. Tensions flare up, and sometimes the bickering between the majorities and the dissenters can get really personal. The Justices have to work together for more or less the rest of their lives, and I think getting everyone out of the building for a couple of months is a good opportunity for the temperature to cool down so everyone can work together productively again the next Term. 

So I'm not sure how to solve the problem more generally. But this Term in particular seems to be highlighting how much of a problem the Court's uneven workflow can be. 

Posted by Daniel Epps on May 29, 2018 at 11:48 AM in 2018 End of Term | Permalink


I understand your comments on the importance of the summer break given that particularly divisive issues are generally jeard just prior to summer break. As you said, gives the justices time to cool off; work together again.


they can grow up and learn some coping . skills like every other person who has a high pressure job working collaboratively with others with the same goal, yet not necessarily the same theoretical foundation! Spread out the most "divisive," the most difficult cases, throughout the year-- do not build them up. How about a 2-week 'lecture' in Europe instead? Cases trickle through SCOTUS! A few months off to allow them to cool off? Igive it to you, nice excuse! I thought these 7 were super tough and the pinnacle of their esteemed profession? They are, aren't they?

Posted by: Kathy Ann | Jun 4, 2018 2:00:19 PM

This is not an "I told you so" of Feldman's misinterpretation of Justice Thomas's silence during oral arguments, but rather an "hoorah" to Andrew Hamm & partner Dan's prawfsblog on June 1st for how it uncovered that Justice Gorsuch's SCOTUS presence evokes his colleagues, thoughtfully,to slow down proceedings enough to allow more deliberated originalist approach consideration.

Posted by: Renée Walker | Jun 1, 2018 3:12:51 PM

Or they could keep their summer breaks, and simply release opinions when they were ready (instead of rushing to finish them by Term's end). Didn't Myers take Taft more than 2 years? (I believe it was reargued too.)

Posted by: Anon | May 30, 2018 11:23:05 AM

One thought is that the Chief could just keep everyone in town just a few extra days if they really had so much work to get done at the end. They finish by the end of June by tradition, but it's not like the world would end if a particularly challenging set of cases made finishing by then (with adequate quality) too difficult.

Posted by: Orin Kerr | May 30, 2018 12:46:54 AM

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