I, and others, post on legal issues for the simple reason that almost every major political issue ends up in the courts — either as parties trying to use the courts to achieve what they could not achieve in the legislature or the simple effort of parties to apply a new law to particular situations. For a variety of reasons, many politically significant decisions are issued by the Supreme Court in two or three key days near the end of June. Since most political junkies are not avid court watchers until June, here are some FAQ’s about what will be happening between now and Monday (or maybe even later).
1) Do we know what opinions will be issued on which days? No, the Supreme Court keeps this information pretty much under wraps (in part because an opinion can be pulled at the last second if any Justice wants one more chance to think about it).
2) What is the actual process of issuing a decision? The Friday after oral argument, the Justices meet and take a vote on the cases heard that week (usually between 4 and 6 cases). After the conference, the senior Justice in the majority (in terms of service) assigns the case to an individual Justice to draft the majority opinion. (For this purpose, the Chief Justice is the most senior Justice even if it is her first year on the Supreme Court.) After that Justice circulates a draft, the other Justices can either “join” that draft, suggest changes to the draft, or circulate a separate opinion. The decision on a case is only released after all Justices are satisfied that all opinions are ready to be released.
On days that the Supreme Court releases opinions, they are in session beginning at 10:00 a.m. EDT. For most of the year, the opinions are released on argument days at the start of the session before any argument. (The Supreme Court’s weekly orders are released at 9:30 a.m., but those are released by the Clerk of the Court.) Decisions are announced in reverse seniority. In other words, any majority opinions by Justice Kagan are issued first with Chief Justice Roberts going last. The Justice announcing the opinion typically gives a brief statement summarizing the opinion. Any Justice who wrote a separate opinion has the option of giving a brief statement summarizing their opinion. (Justices tend to exercise this option only if they feel strongly about a case.) At the time that the announcement of the decision starts, the Clerk hands out copies of the full opinion in that case (and that case only) in the press office. Within minutes the opinion is on-line at the Supreme Court website. After all Justice who want to make a statement on a case is done, the Supreme Court proceeds to the next opinion.
3) How do I figure out what the Supreme Court has ruled? The press office prepares a summary of the case. While the summary is closer to plain English than the opinions, sometimes it is not much clearer. There are two three for this. First, not every opinion is unanimous, and some cases do not have a majority joining a single opinion. Thus, it is possible that you will have a Justice “announce the judgment” but only issue an opinion that has the support of two or three other Justices with a separate opinion “concurring in the judgment” (agreeing whether to affirm or reverse, but not on the reason why the lower court was right or wrong). Second, opinions tend to have parts. One part of the opinion might be the case history, another part might establish the legal test, and a third part might apply that test to the facts. Additionally, a case might have two or three issues, each of which will get a separate part. Sometimes, Justices will join one or two parts only. Third, Justices will sometimes bury the lead in a case — the third part might be the most important, requiring you to get past the summary of the first two parts to figure out what really happened in the case. (A prime example of this was the Affordable Care Act case in 2012 where the Supreme Court’s opinion addressed the Commerce Clause claim (decided against the government) before addressing the Tax and Spend Clause claim (decided for the government) leading to some readers erroneously concluding that the government had lost the case.
4) As a non-lawyer, how should I follow the decisions over the next three days? Unfortunately, there is no live video or audio feed from the Supreme Court. Several blogs do have employees with press credential who will be in the press office and using their wireless devices to blog away. I rely on the blogs more than I do live tv or radio coverage because the more reliable blogs tend to use attorneys to figure out the opinions. (It is just the nature of the beast that attorneys have the experience in quickly separating the wheat from the chaff in judicial opinions.) My personal preference is for scotusblog. The folks at scotusblog run a live blog on every opinion day and they have the process really well figured out.
5) On each given day, what should I be looking for? As noted above, the decisions are handed down in reverse seniority. Because most of the opinions for the term are already out and because the Supreme Court tries to keep the workload balanced and because the senior Justices control who get the biggest cases, it is possible to have strong suspicions regarding who will have which case. It is almost certain that Justice Kagan does not have any of the remaining opinions. (Each Justice should have seven or eight opinions and, as the most junior Justice Kagan is likely to only have seven which she currently has.) Similarly, Justice Sotomayor is also unlikely to have any more opinions. Justice Alito may have an opinion left, but more likely he does not. (If he does, it’s because the Chief Justice would rather Justice Alito write one of two criminal justice opinions than have Justice Thomas write either of the two). Similarly, Justice Breyer is probably finished for the term.
Thus, it is likely that the first Justice with an opinion (and only on one of these days) will be Justice Ginsburg who probably still has an opinion from February. (It would be a shock if the decision was in the health insurance case, and most folks think it will be in the redistricting case.) Justice Thomas may then have an opinion from the April docket (most likely one of the two criminal law cases). At that point, you reach the three most senior and the controversial cases begin. Justice Kennedy will have two opinions — the remaining January case and one of the April cases (one of which should be the same-sex marriage opinion. Justice Scalia should have two opinions — the remaining March case and one April case (probably the other criminal law case). Finally, the Chief Justice will close one of these days with one opinion from a February case (probably the health insurance case). Because some of these cases are controversial, the release process can be slow as the dissenting Justices opt to read a statement from the bench. Figure about 5-10 minutes per case.
6) When will the last opinion be issued? As noted above, only the Justices know and they aren’t saying. We know that the Supreme Court will issue opinions on Thursday and Friday of this week. If they do not get all seven opinions issued, Monday is a regular order day and the Supreme Court would probably issue some opinions then if any are left to issue. The Supreme Court has not yet announced anything sessions after Monday. On the other hand, the Supreme Court has a solid tradition of finishing before July 4th. Several Justices probably have plans to leave town next week and the Supreme Court will do its best not to disrupt those plans.
My expectation is that somebody on this site will blog about the health insurance decision and the same-sex marriage decision on the day that they are issued. Depending on which opinions come on which day, I will probably have comments on the redistricting opinion within three days of that decision. Other end of term commentary on the slew of civil rights and First Amendment decisions will follow during the dog days of summer as we wait for the first Republican “debate.”
