The Volokh Conspiracy

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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.


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.