Is the Supreme Court Rushing to Judgment?

One of the great things about the Supreme Court is that it adheres to self-imposed deadlines. Each “term” basically starts in early October and ends in late June, before the justices begin their summer recess. This annual rhythm guarantees that cases do not languish undecided, while giving parties and the press some sense of when a result will issue. But we all know that strict, arbitrary deadlines aren’t always desirable. Sometimes, doing a good job means taking a little longer than planned. And, as work piles up and deadlines loom, mistakes are more likely to happen. If the Court is rushing to judgment this month, then the results could fundamentally shape the law.

The Court’s end-of-term deadline produces a predictable flurry of activity around this time of year, when the last wave of majority and dissenting opinions is being circulated inside the Court. The cases most obviously affected are the ones heard in late April. For instance, roughly seven months passed between the oral argument in Bond v. United States and last week’s published opinion in that case. By contrast, the Court has only a little over two months from argument to issue decisions in the cases heard during the April sitting. In fact, the rush is even more acute than that because, as Professor Richard Lazarus recently noted, the Court typically circulates all draft majority opinions no later than the beginning of June. This year, for example, the Court’s April sitting included the complicated cell-phone search cases United States v. Wurie and Riley v. California (which I blogged about here and here). The first draft majorities in Wurie and Riley were likely written in just about a month — and at a very busy time of year. Dissent drafts circulate even later, creating the possibility for major swings in reasoning and even in result as July approaches.

The effects of the end-of-term rush are hard to pin down. On its face, the Court’s schedule creates an arbitrary difference in the way that early- and late-term cases are treated. As Lazarus suggests, the Court might be more prone to making relatively small (but still potentially significant) errors during the final weeks of the term, when attention is divided and time is short. In other cases, the Court might fail to reach a majority, or write a fuzzy opinion where — provided more time — a clearer test or analysis might have been possible. And, of course, it’s possible that the Court might be more likely to issue fundamentally ill-considered opinions during the end of the year. Back in 1979, Professor Henry Monaghan opined that “the Court hears cases far too late in its term” and that “the pressure to ‘get these out’ inevitably produces well-known intellectual disasters in every term.” I imagine that most readers can think of their own suspected examples of late-term decisions that could have used a little more time to bake.

Assuming that the Court does sometimes rush to judgment, what is there to do about it? In recent years, the Court has tried (with varying success) to front-load its calendar, partly in order to reduce end-of-term pressure. This year, for instance, the Court approached June having already issued a number of major cases argued in October and November. In a similar vein, the Court might shorten, move earlier in the year, or even cancel its April sitting. Even more interestingly, the Court could encourage symmetrical treatment of all cases year-round by adopting a new norm that all decisions should issue during a set period allowing adequate deliberation — say, within 100 days of argument (assuming that the time between briefing and argument remains fixed). That approach would have the added advantage of preventing early cases from growing overlong and being over-thought. Finally, the Court could do the unthinkable: shorten its summer recess.

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1 Comment

Filed under Supreme Decision-making

One response to “Is the Supreme Court Rushing to Judgment?

  1. Roy Englert

    The Court also could make more liberal use of the technique of setting cases for reargument.

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