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Waiting, or, some recurring end-of-Supreme-Court-term questions
When is [fill-in-the-blank] going to be decided? We don't know.
I have been engaged with the U.S. Supreme Court’s work, really, since 1996’s decision in Romer v. Evans — my first summer in DC. I was at a local newspaper in Ohio during the 2000 recount and Bush v. Gore. I was in law school for Lawrence v. Texas and the beginning of marriage equality, in Massachusetts.
But, my current coverage of the court — the way that I think of my coverage now — began in Spring 2010. I had moved back to DC the prior fall, and two of the cases heard that spring — Christian Legal Society v. Martinez and Doe v. Reed — were of interest to me in my new role at Metro Weekly, DC’s LGBTQ magazine.
What I began learning that year and in the more than dozen years since is a lot of the confusing procedural ways that the Supreme Court works — not just in its formal rules, but also in its unwritten practices. All of those peculiarities make it difficult for people like you. Specifically, people who would be reading a post at a site called Law Dork!
Much that is confusing at the court isn’t even about the actual decisions — although, it certainly can be that, too. A good deal of the procedural confusion comes from totally unnecessary choices that the court has made over time and that it keeps in place either because they just don’t like changing things or, in a less charitable view, because they like choices that keep aspects of the court’s operations less transparent.
For some of you, what follows isn’t news, and I apologize. Don’t worry, I have a real Law Dork special coming for you Monday: A Q&A with Steve Vladeck about his book, The Shadow Docket, that’s coming out Tuesday!
But, for now, three of the big questions that many of you — totally understandably! — don’t know and either will ask or might want to ask in the coming six weeks.
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What cases are left?
Well, that one is easy enough — though it would be next to impossible to figure out from the Supreme Court’s website.
Thankfully, SCOTUSblog has a handy chart of the cases argued this term — look in the “Arguments By Sitting” section — with the decided cases greyed out and their selected “major cases” in red.
Roughly 40 decisions remain — with some questions even on that point. Because Justice Ketanji Brown Jackson recused herself from the Harvard race-conscious admissions policy case, that means that there would be two decisions released out of the Harvard and University of North Carolina cases. (But, the court could ultimately have the UNC case be the controlling decision, given that the full court is participating in it.) The two student loan cases — Nebraska and Brown — address some different issues regarding standing, but similar issues on the merits. Finally, in Moore v. Harper, the case involving the “independent state legislature” scheme, the justices are still deciding how to address the case in light of a recent related decision by the North Carolina Supreme Court.
In addition to those cases, we have a major Voting Rights Act case; an Indian Child Welfare Act case; the case about the First Amendment, civil rights laws, and wedding websites; two major internet cases; the Warhol “fair use” case; the Jack Daniels dog toy case; a key wetlands case; the postal service religious accommodations case; and more than two dozen other outstanding cases.
Is this normal?
No, the court is running behind for its release of opinions — despite having issued five decisions last week and hearing fewer cases than it has in the past. Because the court gives no information about what’s going on with its pending cases — outside of special orders like we’ve seen calling for supplemental briefing in Moore — it’s hard to really know what’s going on, or even make an educated guess, until after the court finishes all of the decisions and recesses for the summer. Then, a more fair assessment of what happened can start to be made.
Even then, though, there are some aspects that we won’t fully understand until a justice or clerk talks. (Email me!) For example, did the “new procedures” put in place after last year’s Dobbs draft leak slow things down this term?
We generally expect the court to finish issuing all of its decisions for the term before the Fourth of July, but the court had gone beyond then due to the pandemic. It was back to being done in June last term, but who knows what will end up happening this term.
When do we know which cases are being decided?
This, of course, is the big question. The bottom line: We don’t know.
This term, the justices are back to taking the bench to hand down decisions. (Those opinion announcement are not livestreamed as arguments are. Why? The court won’t say, an issue previously addressed here at Law Dork.)
All that we are told ahead of time is that there is the possibility of opinions in argued cases on a given day. This week, for example, the only possible opinion day is Thursday.
As of now, according to the court’s calendar, the only “non-argument session” dates — when the justices will be taking the bench and could be expected, therefore, to hand down decisions — are on each Thursday for the remainder of May and the first four weeks of June. It’s likely the court will add additional “decision days” as we move forward, but we won’t know that until, likely, the Friday before they’ve decided to add a day, or multiple days, to the next week.
The court says nothing ahead of time about which or even how many decisions are coming down. This is why you’ll read those of us at the court referring to how many “boxes” there are on any given day. I feel stupid even writing this out, but, here goes: The number of boxes physically present in the Public Information Office before opinions are issued loosely tells us how many decisions are expected. Generally, two decisions fit in a box (unless its an extremely long decision — even longer, for example, than last week’s pork case decision, which came in at 58 pages). As such, on a three-box day, like last week, we can guess that there will most likely be five or six decisions (because the last box might only have one decision).
I know it’s ridiculous, but, because of the court’s constant hide-the-ball lack of transparency, this is the sort of thing we do. And, in the internet age, this is the sort of thing that we tell you so that you can know as much as we know on any decision morning.
The only time we really know what decisions will be handed down is on the last day. On the second-to-last day, the court announces that the next decision day will be when the court releases its final decisions before recessing for the summer.
Finally, what’s the ultimate Supreme Court rule?
The Supreme Court is — as we have seen very clearly over recent years, and in recent months — a body that aggressively rejects outside opinions on its operations.
While that can and should be disputed and addressed, it’s important to remember that, while there are norms and practices and past experience to guide us in understanding what’s going on and expected to happen at the Supreme Court, at the end of the day …
The Supreme Court does what it wants.
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