Now in Legal Rebels:
Posted Jun 25, 2012 01:57 pm CDT
So this is the week, right?
Anticipation is off the charts for the U.S. Supreme Court’s final decisions of the term, especially on the Arizona immigration law and the federal Affordable Care Act. The Obama administration is bracing for defeat in one or both of those cases, news reports say. Speaker of the House John Boehner warns his fellow Republicans to avoid gloating or looking insensitive if all or part of the health care law is struck down. Interest groups, law firms, and others have their experts lined up to analyze the health-care decision. The executive director of one group has drafted eight different releases for the health-care case, the Washington Post reported yesterday, each dealing with a different potential outcome and ready to go out with the push of a button.
So how is the week likely to unfold at the High Court? As last week ended, there was no word from the court about additional opinion days besides Monday, June 25. But all signs indicate that there will be at least one. First, when the court finished its opinions last Thursday, Chief Justice John G. Roberts Jr. did not deliver the short message traditionally given on the penultimate decision day: That the court would be in recess until its next opinion day, at which time it expects to release all remaining opinions of the term. Everyone in the courtroom will listen for whether the chief delivers that message at the end of today’s opinions.
Second, the court has five or six opinions left to deliver in argued cases, counting the Affordable Care Act cases as one, and depending on whether there are one or two opinions in the cases involving life sentences for juvenile murderers. (Those cases, Miller v. Alabama and Jackson v. Hobbs, each received their own hour of oral argument, and conceivably could result in one decision or two.) It’s not unheard of for the court to issue six opinions on a single day at the end of its term. (See the next item.) But it’s more likely the court would divvy up the remaining decisions over at least two opinion days—Monday, plus Wednesday and/or Thursday.
Why not Tuesday? Issuing opinions on Monday and again the very next day wouldn’t give the justices much time for any last minute work on their final opinions. The more usual pattern is what we saw last week: Monday and Thursday. The court also tends to disfavor Fridays as an opinion day. That’s why many observers have predicted Thursday, June 28, as the last day of the term.
Could the term go beyond this week? Certainly. But with only six decisions remaining, it’s unlikely. Going beyond this week would push the term into July, and the court hasn’t done that since 1996, with a July 1 decision in United States v. Winstar Corp., involving the savings-and-loan industry. The last July finish before that was in 1989, when the justices played havoc with Independence Day holiday plans by waiting until July 3 (a Monday) to issue its ruling in Webster v. Reproductive Health Services, in which the court upheld Missouri abortion restrictions.
Speaking of last days at the court, I am reminded of something I ran across recently while doing some research on one of the Supreme Court’s landmark school prayer decisions. On June 25, 1962, in Engel v. Vitale, the court struck down official state prayers in the public schools.
In his Page One story on the decision in The New York Times the next day, then-Times court correspondent Anthony Lewis included this observation: “The prayer case was one of seventeen decided by the Supreme Court in a crowded final session today before it adjourned for the summer.”
Seventeen decisions in one day?
That wouldn’t happen today. Five or six decisions are considered a heavy day, and three or four on the last days of the term have been more the norm in recent year. But keep in mind that 1962 was in the midst of an era when the court regularly heard 150 cases or so during a term, in contrast with the 70 to 80 cases it hears per term nowadays. This term, the total number of decisions expected is 78, according to the court’s own statistics, or 76, according to SCOTUSBlog. (Again, there are several variables involved in determining a total.)
Last fall, when Justices Antonin Scalia and Stephen G. Breyer made an unusual appearance before the Senate Judiciary Committee to answer questions about the court, they were asked about the decline in the number of granted cases over the years. (Scholars point to many reasons, such as a reduction by statute in the kinds of cases the justices must accept under its appellate jurisdiction.)
Justice Scalia told the committee: “When I came on the court [in 1986], I think we were deciding about 150 [cases]. I will tell you, I don’t think we can decide 150 well.”
When he joined the court, Scalia added, some decisions had majority and dissenting opinions that were like “ships passing in the night.”
“You turned to the front page [of those] and you will see it is a June opinion,” he said. “Because we were rushing out our opinions at the end of the term.”
Justice Breyer agreed with Scalia that complex, lengthy federal statutes passed by Congress, which inevitably lead to divergent interpretations in lower federal courts, eventually affect the flow of cert-worthy cases in the Supreme Court.
“So, you’re now passing laws with thousands of pages, not budgetary laws, but laws that are likely to come to us,” Breyer told the committee during the Oct. 5 session, about six weeks before the court granted review in the appeals involving the more than 1,000-page Affordable Care Act.