U.S. Supreme Court

SCOTUS Reporters Make Their Decision-Day Strategies, Entertain Speculation on Case Outcomes


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The U.S. Supreme Court convenes again today to release more opinions. It won’t lack for coverage. On each opinion day during June, the court’s press room has attracted an ever-larger number of reporters, all brimming with anticipation for the yet-to-be released decisions on the Affordable Care Act or Arizona’s immigration law.

On Monday, June 11, regulars and intermittent reporters were rewarded for their diligent presence with just one opinion delivered from the bench: a 6-3 decision interpreting the Civil Service Reform Act of 1978, involving where certain federal employees may challenge adverse job actions. Not the decision most, if any, reporters were waiting for.

On the next day for decisions, Monday, June 18, the press room was even more overflowing, and for the first time this spring, the press section of the courtroom was nearly full with reporters. The sections of the courtroom for the Supreme Court bar and the general public were also virtually full.

Chief Justice John G. Roberts Jr. announced, routinely, that the day’s orders of the court had been “duly entered and filed with the clerk,” and introduced Justice Elena Kagan to announce the court’s decision in a case called Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, about federal recognition of a Native American tribe as it relates to a legal challenge to a casino in Michigan.

“This is about sovereign immunity and prudential standing,” Kagan began, “maybe not what you all came for today.”

The audience chuckled, and then was treated to a decision in a second Native American case (by Justice Sonia Sotomayor), followed by opinion announcements by Justice Samuel A. Alito Jr. in two relatively more newsworthy cases—one a fractured decision involving the confrontation clause, the other about whether pharmaceutical sales reps were eligible for overtime pay.

• • •

There are two schools of thought among reporters when it comes to pure decision days at the Supreme Court. Matters are different earlier in the court’s term, when on some days the justices issue decisions and hear arguments in the same sitting. But at this time of year, when only opinions are released, there is a choice between going up to the courtroom or staying in the press room.

In the press room, public information officers begin handing out copies of an opinion as soon as the author begins reading its summary in the courtroom. Reporters for the wire services grab the opinions and immediately seek to decipher the judgments, the voting lineup, and the key points of the majority and dissent rationales before dashing off their first stories. Most reporters for electronic media outlets also choose the press room, where they can grab the opinion before heading outside to their camera setups to inform the audiences of CNN, Fox News, or MSNBC.

The other option is to go up to the courtroom to see and hear the justices deliver their opinions firsthand. (Thankfully, in contrast to an earlier era, the authors deliver only a summary, not the full written opinion, though each justice has his or her own style with respect to how detailed a summary to deliver.) This is a time when Justice Clarence Thomas, infamous for remaining silent during oral arguments over the last six years, suddenly becomes loquacious.

The chief advantage of listening to opinions in the courtroom is that this is the only time that the opinion author is going to publicly summarize the decision at length, and there are nuances that one picks up from the oral delivery. The regular correspondents of National Public Radio, the New York Times, the Washington Post, and a handful of others (such as yours truly) generally elect to be in the courtroom.

However, being in the courtroom gets tricky in a term’s last days, when many of the longest and most contentious opinions are announced. The justices’ summaries for the typical four to six cases on such days can easily take anywhere from a half-hour to an hour to deliver, and even correspondents for old-fashioned newspapers have obligations to file early versions of their stories for the Web. Two years ago, the court released four opinions on its final day, including the contentious decision in McDonald v. City of Chicago, about whether the Second Amendment’s guarantee of the right to bear arms applied to the states (and its subdivisions). The reading of the opinions lasted well more than an hour, and even some reporters slipped away from the courtroom. (That day’s challenges were compounded by the fact that it was Justice John Paul Stevens’ last day on the bench before his retirement, and that the Senate Judiciary Committee was beginning its confirmation hearings for his nominated successor, Kagan, that very afternoon.)

• • •

Justice Kagan was not the only member of the court to have some fun with the heavy anticipation over the term’s biggest cases.

Justice Ruth Bader Ginsburg spoke last Friday to the annual meeting in Washington of the American Constitution Society.

“The term has been more than usually taxing,” Ginsburg said to the group for progressive-leaning lawyers and law professors. “Some have called it the term of the century.”

“As one may expect, many of the most controversial cases remain pending,” she said. “So it is likely that the sharp disagreement rate will go up next week and the week after.”

Ginsburg reviewed a number of the court’s decisions from the current term, as well some of the biggest remaining cases, all while artfully revealing nothing about the court’s internal deliberations.

In reviewing the central questions in the Affordable Care Act cases, Ginsburg said, “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, … is unconstitutional, must the entire act fall?”

Or, she continued with a sly smile, “may the mandate be chopped, like a head of broccoli, from the rest of the act?”

This, of course, was a reference to the question raised by various lower-court judges to the review the law, as well by Justice Antonin Scalia during the Supreme Court’s arguments, about whether upholding the mandate would give the federal government the right to require citizens to eat broccoli.

Justice Ginsburg was so upbeat at the ACS meeting that at least one observer, Orin Kerr of George Washington University, speculated in a blog post on the Volokh Conspiracy that it could be a sign that the court’s liberals were on the winning side on the mandate issue. Some attendees at the ACS meeting could be heard making similar observations.

Stephen Wermiel of American University Washington College of Law, who used to cover the High Court for the Wall Street Journal, discussed in a post at SCOTUSBlog the numerous rumors that typically fly around Washington late in any court term about when a big decision might be announced.

At the ACS meeting, Justice Ginsburg repeated a line she had recently read a those who presume to have any such inside information.

“Those who know don’t talk,” the justice said. “And those who talk don’t know.”

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