SCOTUS Notebook: The Mechanics and the Art of Court Decisions
Posted Jun 28, 2012 01:41 pm CDT
Countless numbers of Americans will be reading the U.S. Supreme Court’s decision in the health care case today. For many, it may be the first time they have ever tackled an opinion by the justices.
The first thing readers will encounter is what the court calls the decision’s “syllabus.” It has nothing to do with a college reading list, but is the high court’s term for a summary, or headnote, of the majority opinion.
For the Affordable Care Act cases, the syllabus alone could run several pages, summarizing a majority opinion that by itself could top 100 typeset pages. The syllabus will likely tell everyone whether the signature achievement of President Obama’s first term is being upheld, or struck down in whole or in part.
Millions will be clamoring to get a look at the opinion, whether in PDF form on their computer or iPad, on a copy they churned out on the office Xerox machine, or in a printed version handed out at the Supreme Court building. Opinions distributed at the court are usually in what is dubbed “missalette” form—little 5½- by 8½-inch typeset booklets. But often on the day of big decisions, especially lengthy opinions come out on regular old 8½- by 11-inch paper.
The opinions, and the syllabus, are prepared for publication by the Supreme Court’s Reporter of Decisions. This is not the court’s public information officer, who deals with the news media. The reporter is a lawyer who leads a small staff of other lawyers and paralegals who work closely with the justices to whip opinions into shape for release.
The reporter of decisions is Christine L. Fallon, who took over in March 2011 after serving as deputy reporter since 1989. SCOTUSBlog reporter Lyle Denniston this week gave a shoutout to Fallon on the blog, calling her the court’s “secret weapon” for helping the public, including the media, quickly understand the court’s decisions through the syllabus.
Fallon likely will be in the courtroom today, in her normal prime seat just a few feet away from the bench. And while she has already done much work committing the opinions to print and drafting the syllabus, her work will continue as they are prepared for final publication in the bound volumes of the United States Reports.
Fallon succeeded Frank D. Wagner, who served as reporter of decisions for 23 years and retired in 2010. Upon his retirement, he gave a fascinating interview to Tony Mauro of the National Law Journal. Among the tasks of the reporter is to try to ensure a consistent style of language and usage in the court’s opinions. Mauro has documented how different justices used varying spellings of “marijuana”—with some spelling it “marihuana.” In 1986, the reporter of decisions asked the justices to decide on one or the other, and “marijuana” won out.
Wagner told Mauro in the 2010 interview that justices also had their own preferences when it came to the length of the syllabus accompanying their opinions. For example, Justice Antonin Scalia prefers brevity, while Justice Ruth Bader Ginsburg prefers fuller summaries. Wagner said that the other justices fell somewhere in between. Wagner himself believed the syllabuses (his preference over “syllabi”) should be short and that everyone interested in a given decision should read the whole thing. But he also noted that the head of Cornell University’s Legal Information Institute, which is a widely read publisher of free Web versions of Supreme Court opinions, had told him that technology showed that more people read the syllabus for a case than read the majority opinion.
In the health care case, the syllabus may play its biggest role since that 2000 decision known as Bush v. Gore. While that case had been argued in court, the 5-4 decision that ended the 2000 presidential election battle was “per curiam,” with no member of the majority attaching his or her name to the main opinion (though the four justices in the minority issued signed dissents.) Amid the frenzy and the pressing time frame for that Dec.12, 2000, decision, the justices did not take the bench to summarize the opinion. The syllabus ended with the notation that the case was “reversed and remanded,” leading to some initial confusion in the media about whether the election dispute was over or not.
One final note about the syllabus. On the front of each one, the court notes that the syllabus “constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.” The warning stems from a 1906 case, United States v. Detroit Timber & Lumber Co., in which the justices found that a headnote in an earlier case had misrepresented the court’s actual holding and thus could not be cited as authority.
You can look up the Detroit Timber case, but if you don’t want to digest the whole thing, just read the syllabus.
There will be images from inside the courtroom today. Not video or photographic images, of course, but the work of good old-fashioned courtroom artists.
The Supreme Court has three regulars: William J. Hennessy Jr. of Fox News and other clients; Art Lien of NBC News; and Dana Verkouteren of the Associated Press. All will likely be in their places between the columns behind the first two rows of the press section.
“I’m just going to do what I do, which is to go in there and draw,” says Verkouteren. “I don’t aim my drawing any differently because it’s the health care case or the immigration case or anything else.”
Her drawing from the health-care arguments in March accompanied a profile of Solicitor General Donald B. Verrilli Jr. in the Washington Post. And readers of the Bakersfield Californian on Tuesday saw a large sketch on Page 1 of Justice Anthony M. Kennedy reading his decision in the Arizona immigration case.
Lien, who has been a courtroom artist for 32 years, missed part of this spring’s Supreme Court decision season because he was covering the trial of Jerry Sandusky in Bellefonte, Pa. But he didn’t miss any major high court decisions.
“At least Sandusky didn’t make me miss the health care ruling,” he says.
The artists pride themselves on sketching fresh images in each session, even though the justices look pretty much the same from one day to the next. But they do sometimes get a jump on their outlines and backgrounds. (After all, the same red curtains with gold trim are there every day.)
“I’m trying hard not to prepare too much in advance for Thursday,” Lien says. But he has gotten a jump on one possible author of the health care decision.
“I’ve penciled in the chief justice,” Lien says. “But he could easily be changed.”