The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As Supreme Court watchers know, the Court usually hands down the biggest cases of the Term during the end of June. Often, the blockbusters are handed down on the very last day. Although technically the Supreme Court Term ends later by statute, in practice that means the big decisions often come at the end of the Term. In a Duke Law Journal article documenting this trend empirically, authors Lee Epstein, William Landes, and Richard Posner speculate about why this might happen:
We can only speculate, but three possibilities come to mind. The first centers on legacy and reputational concerns: when writing what they think will prove to be major decisions the Justices take more time, polishing and polishing (or making their law clerks polish and polish, since nowadays law clerks do most judicial writing even in the Supreme Court) until the last possible moment, with the hope of promoting their own reputation. After all, excerpts of some of these big cases will find their way into the popular press and, more importantly, into casebooks that generations of law students will read; and, most importantly, the cases may continue to be remembered, discussed, and cited long, long after they are decided.
A second possible explanation is that the Justices delay certain decisions for public-relations reasons. The close proximity of
decisions in the most important cases may tend to diffuse media coverage of and other commentary regarding any particular case, and thus spare the Justices unwanted criticism. But the opposite effect is possible: the expectation of a crowd of important cases at the end of the term can increase media attention, as in Slate's "Breakfast Table" end-of-term roundup.
Finally, though related to the second explanation, the Justices, most of whom have busy social schedules in Washington, may want to avoid tensions at their social functions by clustering the most controversial cases in the last week or two of the term-that is, just before they leave Washington for their summer recess.
A few thoughts.
To begin with, I don't think the second or third explanations are plausible. The idea that the Justices cluster cases in June to diffuse media coverage doesn't work because the Justices go out of their way to space out their major rulings. Consider this week. In addition to handing down decisions this Monday and next Monday, the Court recently added decision days tomorrow and Friday. They don't have to do that. They could just wait until next Monday. My understanding has been that the point of adding decision days is to avoid clustering. In a 24-hour news cycle, spacing out decisions so that any one day has only a few opinions at most is a way of avoiding the diffusion of media coverage rather than seeking it.
The hypothesis that the Justices might delay their big opinions to "avoid tensions at their social functions" strikes me as particularly unlikely. Even assuming Justices care about such things—which I don't think they do—the likely dynamic would be the opposite. To the extent Justices are hanging out with friends or acquaintances who would comment on recent cases, I suspect most of them hang out with those who applaud rather than criticize their work. When Justice Ginsburg schmoozes with the crowd at the annual ACS convention, she probably isn't overly anxious that someone is going to approach her and harshly condemn her decisions. Same with Justice Scalia at the Federalist Society annual dinner.
The first explanation strikes me as basically right but incomplete. As I see it, the issue is not just the Justices taking their time to improve their reputations. Based on my short experience as a law clerk a decade ago, my recollection is that a case's high profile seemed to slow everything down. The drafter of the proposed majority might take more time to circulate a draft. Justices who would join the opinion might take more time to review the draft. Suggested changes might be more extensive. Getting to five might take more time. And then the dissenters might take more time to author dissents. Everything slowed down, both among the Justices writing and those joining. I attributed that to the higher stakes being thought to justify particular attention and caution. That's my recollection based on observing one Term, at least.