SCOTUS for law students: It happens every spring (sponsored by Bloomberg Law)
on Jun 20, 2012 at 12:06 pm
Every June, you can count on two things regarding the Court. First, the Justices will issue some major rulings resolving cases that were argued earlier in the Term. Second, the rumor mill about how and when those decisions will be made, especially in and around Washington, D.C., will take on a life of its own, with no stopping it.
The current focus, of course, is the impending decision on the constitutionality of the Affordable Care Act, the sweeping health care reform law proposed by President Obama and passed by Congress. In March, the Justices devoted six hours of oral argument to the issues raised by challenges to the health care law.
On any given day in the past several weeks, close observers of the Court could have found individuals in Washington who had “indisputable” information about both when the cases would be decided and what the result would be. Among these certain predictions were: the decision was going to be handed down the week of June 11; the decision was coming out on Thursday, June 14; and Chief Justice John Roberts has been quietly working inside the Court since before the oral arguments to build a consensus to uphold the law.
Now let’s be clear. The first two were obviously not true, although it is the nature of the rumor mill in Washington that the purveyors of that information will never accept that falsity. They will undoubtedly merely assert that the Court must have changed its mind or hit a bump in the process at the last minute. The third of the rumors, the one about the Chief Justice, might turn out to be true, although it is extremely unlikely that it was based on any actual inside information.
To appreciate this issue in the proper perspective, it is important to remember that genuine leaks at the Court are few and far between. The universe of people who purport to have inside information about the Court is vastly greater than the much smaller group of people who actually know what is happening inside the Court.
So where do all of these rumors originate and how do they get spread? More often than not, they are based on a misunderstanding of the significance of some not particularly profound – or inside – piece of information.
Consider the predictions about when the Affordable Care Act cases will be decided. During June, the Justices meet in their private Conference on Thursdays to decide which new cases they will review on the merits and finalize decisions in argued cases. On the following Mondays, the Court is scheduled to take the bench to issue the orders from that Conference as well as opinions. During some weeks in June – like this week, for example — the Court announces ahead of time that it will issue additional decisions on Thursdays (or even other days of the week on occasion). Most of the rumors about when a case will be decided are like a bad children’s game of “telephone” – the first person says the Court is meeting again on Thursday, and by the time that message is transmitted down the line to other people, it reads: the Court will hand down the health care decisions on Thursday. Actually, maybe that makes it a good game of telephone – it would be no fun if the message came out in the same form as the original.
What about the reports that the Chief Justice is working quietly behind the scenes to create a consensus to uphold the law? I don’t know how that one started, but here’s a good bet: a Court watcher mused aloud to another that it would be interesting to see if Roberts worked behind the scenes to get consensus the same way Chief Justice Earl Warren did in 1954 to bring about a unanimous ruling in Brown v. Board of Education. That Warren did it is well-documented by legal historians. That Roberts is doing it?
Some of the rumors take the form of reading tea leaves. Individuals who attended the American Constitution Society annual convention last week said Justice Ruth Bader Ginsburg seemed to be in a very good mood. That must mean, the tea leaves say, that the Court is going to uphold the health care law.
This end-of-Term speculation has long been a sport in Washington, although there is often nothing sporting about the stakes in the outcomes of the cases. In 1989, the Supreme Court reviewed Missouri’s abortion restrictions in the case of Webster v. Reproductive Health Services, the first abortion case for the Court after Justice Lewis Powell, a supporter of abortion rights, retired and was succeeded by Justice Anthony Kennedy, who was expected to favor the constitutionality of abortion restrictions. The case was therefore to hinge on the vote of Justice Sandra Day O’Connor, whom the rumor mill depicted as critically ill and hanging on just long enough to cast her vote in the Missouri case. The rumors became louder and more persistent when “insiders” reported that O’Connor was away from the Court. But – far from being sick and in the hospital – O’Connor was in fact on a hiking trip with her law clerks that involved fairly vigorous activity on her part. And she returned to cast her vote and serve for sixteen more years.
The rumor mill once had an inadvertent ally in the late Justice William J. Brennan, Jr. The exact date on which the Court’s Term will end is often up in the air; all we know is that the Term won’t end until all of the decisions from the Term are released. During the 1970s, Court watchers would sometimes try to learn when Justice Brennan had a reservation to take his car on the ferry to Nantucket for the summer: with that information, they could better predict when the Term might end. But that handicapper’s guide is no more; the closest we get is the date on which the Justices’ overseas teaching responsibilities start.
The rumor mill is also fueled by public relations interests. In high-stakes cases, interest groups want to make certain that they will be quoted when a decision comes out. So some groups start sending out press releases whenever the Court is scheduled to issue decisions, announcing that they are ready to comment that day. Put one of those press releases in the hands of a radio newsreader, and the release can suddenly morph into an expectation that the Court will issue its decision today.
There are several truths about the rumor mill that churns at the Court every June. The first is that it won’t stop because there will always be people in Washington who need to seem as if they are among those in the know. The second is that if you keep predicting that a decision will come down on a particular day, eventually you will be right. The third is that, to paraphrase Justice Ginsburg at the American Constitution Society events, the only people who actually know what is happening in a case are inside the Supreme Court building, and they are not talking.
So when will the Supreme Court decide the health care cases? As a matter of longstanding tradition, the Court does not leave the bench for the summer until the Justices have decided every case that was argued during the Term. If they are unable to decide a case, they put it back on the calendar to be reargued in the next Term, but that almost never happens any more. What that means is that the Court will either decide the health care appeals in the next ten days and adjourn before July 4, as is its custom, or it will order reargument in the health care cases for next Term; the latter is almost inconceivable. Right now the Court is scheduled to sit tomorrow, June 21, and again next Monday, June 25. They may decide the cases on either of those dates, or even more likely based on past practice the Court will add additional decision days next week – probably Wednesday and/or Thursday.
That is about as certain as outside information can get. Remember, you heard it here first!
