It’s Not Always Over When It’s Over: SCOTUS allows rearguments in some cases
When the U.S. Supreme Court takes the bench on the last public day of its term each year, there is high drama as the justices announce the final opinions, often involving the most high-profile and controversial cases. But every so often there is even more suspense as the chief justice reveals that a case the court had heard during the term has not been resolved and will be “restored to the calendar for reargument.”
Chief Justice John Roberts made such an announcement June 27, declaring that Louisiana v. Callais and a companion case about the constitutionality of a second Black-majority congressional district in the state would be reargued in the next term.
“In due course, the court will issue an order scheduling argument and specifying any additional questions to be addressed in supplemental briefing,” Roberts said from the bench.
The stakes for the Louisiana case grew when the court issued that order Aug. 1, asking the parties to address a more sweeping legal question: whether the state’s intentional creation of a second Black-majority district violates the 14th or 15th amendments.
Callais “had been a fairly ordinary racial gerrymandering case,” Nicholas Stephanopoulos, an election law expert and Harvard law professor, said Aug. 14 on the National Constitution Center’s We the People podcast. “If the court decides that Section 2 is not constitutional, that would be a huge earthquake for redistricting and for representation in American politics.”
The case is scheduled for reargument on Oct. 15. In the meantime, it puts a spotlight on the court’s rare practice of seeking a form of do-over for an argued case.
“The norm is that once the court hears a case, they have to decide it by the end of the term,” says Valerie Hoekstra, a professor in the School of Politics and Global Studies at Arizona State University who studies the Supreme Court. “It’s not a law—the court pretty much comes up with its own rules. But it is the norm.”
Does reargument run against ‘speedy justice’?
More than 20 years ago, Hoekstra and Timothy Johnson, a professor of political science and law at the University of Minnesota, published a study of 172 cases reargued from 1946 through 1985. While there had been a slight spike of reargued cases—6.6% of all argued cases—under Chief Justice Fred M. Vinson during his tenure from 1946-53, the proportion was 2.6% each for all cases under Chief Justices Earl Warren (1953-69) and Warren E. Burger (1969-86).
This was in an era when more than 100 merits cases were generally argued per term. The court currently hears about 60 merits cases each term, and reargument is less frequent.
Hoekstra and Johnson concluded that individual justices have maneuvered for reargument to affect the outcome of a case, with calls for the tactic “used as an implicit or explicit threat by justices who are unhappy with the direction of the court’s deliberations.”
“Reargument puts off a decision for another year, and most of these cases have been in the works for years,” Hoekstra said in an interview. “That norm runs against the case of speedy justice.”
Still, some cases have been especially momentous and presented special challenges.
The landmark Brown v. Board of Education of Topeka case about school desegregation was first argued in the 1952-53 term. The justices privately deliberated over the issue for much of that term and ultimately decided to rehear Brown and its companion cases. They proffered five detailed questions for the parties to address.
The next term, with Warren becoming chief justice after Vinson’s death in September 1953, the court came to its historic and unanimous decision declaring that separate schools for Black and white students were inherently unequal.
In 1972, in Roe v. Wade, the court considered whether the Constitution protected abortion rights. Justice Harry Blackmun was assigned to write the majority opinion for a tentative majority in support of such a right. But only a seven-justice court had first participated. Justices Lewis Powell Jr. and William Rehnquist joined the court in January 1972, a few weeks after the abortion cases had been argued.
Blackmun first pushed for reargument in January 1972, but his suggestion didn’t gain traction with his colleagues, so he pressed ahead with his draft opinions. By May, Blackmun again pleaded for more time and a full court.
“Although it would prove costly to me personally, in the light of energy and hours expended, I have now concluded, somewhat reluctantly, that reargument … at an early date in the next term would perhaps be advisable,” Blackmun told his colleagues in a May 31, 1972, memo. “I believe, in an issue so sensitive and so emotional as this one, the country deserves the conclusion of a nine-man, not a seven-man court.”
This time, the court agreed, except for Justice William O. Douglas, who threatened to write a dissenting opinion but in the end merely noted his disagreement with the reargument order.
In January 1973, the court ruled 7-2 to recognize a federal right to abortion, with Powell joining the majority and Rehnquist dissenting along with Justice Byron R. White. Roe was overruled in 2022 by Dobbs v. Jackson Women’s Health Organization.
‘Unhappy with the case before us’
Stephen Wermiel, a professor at American University Washington College of Law, says rearguments are one of the Supreme Court’s most mysterious procedures, with no published rule dictating when they should occur or explaining what triggers the process.
Wermiel, who covered the court from 1979 to 1991 for the Wall Street Journal, says many rearguments in the Warren, Burger, and Rehnquist eras likely resulted from the simple fact that the justices had reached the end of the term and were still divided over how to resolve a case.
Under Roberts, however, that has occurred minimally if at all, and rearguments have been more strategic, says Wermiel, who also is a member of the ABA Journal Board of Editors.
“It does seem to me that the Roberts court is using rearguments in targeted ways to try to have cases achieve particular ends,” he says. “With this current voting rights reargument [in the Louisiana case], it seems like they intended to accomplish a specific goal with the case and spent some time trying to figure out exactly how to how to get there.”
“Citizens United is another classic example of that,” he adds.
In Citizens United v. Federal Election Commission, the court initially weighed a narrow question about whether federal election law barred an interest group from posting a video critical of then-Democratic presidential primary candidate Hillary Clinton within 30 days of a primary election.
On June 29, 2009, Roberts announced from the bench that the case would be restored to the calendar for reargument, on a much broader set of questions involving whether the court should overrule all or part of two of its election law precedents that limited independent corporate campaign expenditures.
The following January, the court announced its 5-4 decision in Citizens United, which did overrule those precedents and authorized unlimited independent spending by corporations, unions and super PACs.
Justice John Paul Stevens wrote in dissent that “Essentially, five justices were unhappy with the limited nature of the [original] case before us, so they changed the case to give themselves an opportunity to change the law.”
‘The most valuable feedback loop imaginable’
Another category of reargued cases arises when a justice’s seat is vacant, and the shorthanded court has apparently deadlocked. That happened at least once when Justice Antonin Scalia’s 2016 death led to a prolonged vacancy on the court.
In the 2016-17 term, the court heard arguments in Lynch v. Dimaya, about the interpretation of the term “crime of violence” in a federal immigration law. In June 2017, Roberts announced that the case would be reargued in the next term. This was after Justice Neil Gorsuch had filled Scalia’s vacancy in April 2017.
E. Joshua Rosenkranz, a partner with Orrick, Herrington & Sutcliffe in New York City, delivered both the original argument and reargument on behalf of an immigrant who faced deportation as an aggravated felon.
A reargument order can seem at first like a setback, Rosenkranz says.
“It is natural to think that you’ve already optimally formulated the argument and developed the best answer to every question,” he says. “But that first argument is the most valuable feedback loop imaginable.”
Those initial arguments “have now been market-tested before the very audience you have to convince,” Rosenkranz adds. “So now, the job is to throw out everything you thought you knew and recalibrate your strategy. What votes are still up for grabs? How do you get to five? What formulations got traction? What fell flat—and how can you refine them? Those are the questions I’d spend the summer pondering.”
After the case was reargued, Gorsuch largely joined the court’s four more liberal members in the renamed Sessions v. Dimaya, ruling that the key statutory provision at issue was unconstitutionally vague.
On the second try, Rosenkranz and his client got to five.
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