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When Will the First Opinion Be Released?

Correction at 3:40 PM:  The original version of this post mistakenly noted that the Court offers no public guidance about opinions, but that is incorrect.  In fact, the Supreme Court does offer some guidance to the public as to when opinions will be released via its opinion line, which is available by calling 202-479-3360.  That line has not been updated since October 10, which makes it unlikely that opinions will be issued tomorrow or Wednesday.

The Supreme Court offers no public guidance on when it will issue specific opinions in argued cases, and it offers limited advance guidance as to when opinions in general will be issued; thus, it is a bit of a guessing game as to when the first signed (i.e., non-per curiam) merits opinion will be announced this term. While the term has already seen one merits case disposed of, the affirmation of the ruling below in the Tom F. case by an equally divided vote was unsigned and had no legal reasoning. Thus, the speculation continues: when will the first signed opinion come?

Logistically, the Court by tradition does not issue opinions on the same day it both hears arguments and issues orders. Hence, today was not a possibility for the Court to release any opinions.

Tomorrow or Wednesday, however, are possibilities for the issuance of the Court’s first signed opinions of the term, as is one week from tomorrow, 11/13 (Monday being a legal holiday). That is the last possible day until the first Tuesday of the “December” sitting, which is November 27. Other possible opinion days in calendar year 2007 are 11/28, 12/4, 12/5, and 12/10.

Last term, the Court’s first signed opinion after argument (Justice Kennedy’s 5-4 opinion in Ayers v. Belmontes) came on Monday, 11/13, which this term corresponds to Tuesday, 11/13. An additional three signed opinions were released during the December sitting and before the New Year.

In OT05, the Court issued its first two signed opinions slightly earlier, on the Tuesday of the second week of the November sitting (the equivalent day this term is 11/6). The two opinions issued 11/8/05, both unanimous, were IBP v. Alvarez and U.S. v. Olson. That term, the Court also issued one signed opinion on the Monday following the final Conference of the November sitting, on 11/14/05; a total of seven cases were decided before the Court adjourned for the Winter Recess. In October Term 2004, the Court also issued two unanimous opinions on the second Tuesday of the November sitting, 11/9/04, and it released nine total signed opinions before the Recess. In OT03, the final Monday of the November sitting saw the first signed opinion, and there were seven opinions issued before the Recess.

One interesting additional wrinkle this term could be that the Court’s early workload has been lighter than it has been in the past. Right now, with the per curiam disposition of the Tom F. case, the Court has only eight outstanding cases from last sitting and will need to prepare for oral argument in just ten cases this sitting and eight next month. We can only wait and see whether this translates to an increased output for the Court before what looks to be a full winter argument slate.

Regardless of how many opinions we see before the December session adjourns, however, it does bear repeating what Tom has previously mentioned in relation to the pace of the Court’s decision-making: the Court continues to issue rulings faster than almost any other Court, and no one doubts that the Justices will dispose adequately with all of their cases by the end of the Term in late June.

With all of this in mind, let the office pools begin!

[Note: last term, we posted this entry on this same topic, and also linked to this older post from Marty Lederman regarding when the first opinions have been issued going back some twenty-five years. This is an updated version of last year’s entry.]