A New SCOTUS Workflow: Opinions during the Recess and on Non-Argument Days in February

The ability to hand down opinions virtually has given the Court more flexibility.

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Earlier this month, the Supreme Court announced that it would decide one or more opinions. At the time, I was surprised. Historically, the Court has not issued opinions during the lengthy February recess. That anomaly led me to speculate that the Court may decide California v. Texas, the ACA case, before the Biden administration could flip its position. I was wrong. Instead, the Court decided three minor cases. At SCOTUSBlog, Amy Howe commented that the Court "took the unusual step of releasing opinions during the recess, apparently because they could." Mark Walsh added that the Justices now seem "willing to add more opinion days even during their normal 'off' weeks."

Today, the Court decided down another case. We are no longer on a recess, but the Court generally issues opinions on argument days–at least this early in the term. Usually in February and March, the Court will hand down opinions on Mondays, and occasionally on Tuesdays and Wednesdays. For example, in 2019, the first Wednesday hand down day was on February 20. But in 2019, the first Thursday hand down was on June 20! A Thursday hand down is rare. At SCOTUSBlog, Mark Walsh suggests that we have a "new normal, which is opinions on Thursday during an argument week."

The pandemic has affected the Court's workflow in many ways. The ability to hand down opinions virtually has opened up the Court's calendar. There is no longer a requirement that a Justice attends Court to announce the opinion. A PDF is simply posted from up on high. Now, an opinion will be released when it is ready, and not on the next-available argument day. I still miss the hand downs. I regret that we did not have any dissents ready from the bench–especially for RBG's last term.

NEXT: "Interrogee"

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  1. I dont necessarily see the problem with the new system: it takes less of a justices time and is probably better for the clients, whose lawyers can just read a pdf instead of being billed for sitting through some presentation.

    1. Surely the lawyers don’t typically attend the announcement of the opinions, since they have no way of knowing in advance when they’ll be issued?

      1. Maybe, I have no idea.

        But surely someone has to sit through it right? Maybe just journalists.

        But journalists having the same information at the same time as everyone else is also a positive development. Maybe they will actually read the opinions then!

        And imo lawyers should be informed in advance. What good does it do for the client for the case to be just sitting with no one knowing when anything is going to happen?

        Maybe. I mean, I know nothing so I’m probably wrong but so much of SCOTUS procedure seems to screw over the clients, who are the main point of the proceedings!

        1. Your last sentence is completely right.

          Honestly, one thing all these zoom arguments are convincing me of is that clients have been paying a lot more travel time than they should have, for all these years, because judges (and, honestly, lawyers too) were too hide-bound to change.

          1. Yeah. Pre-covid, federal judges¹ thought nothing of summoning people to court for a 10-minute status conference. Including situations where there were no disputes to address, and the judge just wanted to make sure the case was on track. There was never a good reason to do those in person rather than on the phone, but that’s the way they had always done it, so they insisted on doing it. So it was an hour of round-trip travel (including the time to get through security) — sometimes worse — plus often 10 or 15 minutes of waiting for the judge, and then 10 minutes of conference. Wasting, say, an hour and a half for 10 minutes of court.

            One of the silver linings of covid from a professional point of view was that these were all converted to phone conferences, turning 10 minute conferences into… 10 minute conferences.


            ¹I don’t mean to single out federal judges; state judges in NY were even worse. It’s just that my practice is all in federal court so I don’t have to deal with state judges doing it.

            1. Federal judge stupidity well illustrated. They stink and should be fired.

  2. Anything that makes the Supreme Court function more like a regular court seems like a positive development to me.

  3. Maybe they can get over 65 opinions a year now.

    1. Well, that’s just crazy-talk. 🙂

  4. Why would they care what the Biden administration does in an ACA case? I thought the Court was apolitical. Did I miss something, or were we just mislead? You know, that old “balls and strikes” thing….

    1. I think literally no one here understands what point you were trying to make in your comment.

  5. The Justices are not just the stupidest people in the country. They are the laziest. The latter characteristic is good for the country. The less they decide, the better off everyone is.

    1. The more cases they decide, the less open cases of law and the more refined and clear it becomes, meaning the less lawyers you need.

      At least supposedly.

      I thought ridding the world of lawyers was a desire of yours?

      1. If the public is oppressed by the lawyer hierarchy, the lawyer is doubly so, and the ordinary judge, triply so. I am the best friend of the profession. I want to cut it in half, quadruple its income, make its effectiveness and public esteem 10 times greater. Now, all the self stated goals of every law suject are in failure. The profession is an anchor and toxin on our nation. It could be great and highly valuable.

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