SCOTUS for law students: The end of the Term
on Jun 18, 2016 at 9:17 am
The annual end of the Supreme Court Term holds a fascination, not only for the most avid Supreme Court watchers but also for the more casual observers. The most obvious reason is that many of the Court’s most important cases are also the decisions that take the longest to produce and so tend to pool in late June at the end of the Term.
But over time the end of the Term has built up a lore of its own, anecdotes and moments of suspense that add to the fascination.
One frequent source of suspense and interest is how many decisions the Court may hand down on a particular day as the close of business approaches and how many pages those decisions might contain in total. Some veteran Court watchers recite the legend of a day on which the Justices filled an entire volume of the U.S. Reports, the official printed record of Supreme Court decisions; few who recite that legend can cite chapter and verse.
While there may be more than one such occasion in Supreme Court annals, it is true that on June 12, 1967, not the end of the Term but in the final throes, the Supreme Court issued decisions that eventually filled all of Volume 388 of the U.S. Reports, decisions occupying 438 pages. While that piece of lore may be impressive, it has less meaning than it seems because over the years the size of U.S. Reports volumes has fluctuated. On June 29, 1972, for example, the final day of the October Term 1971, the Justices issued ten separate decisions that occupied 606 pages of Volume 408 of the U.S. Reports. But this massive release, which included the 232-page invalidation of the death penalty in Furman v. Georgia, did not fill that entire volume. And on June 29, 1988, the final blast of the October Term 1987 amounted to 446 pages of Volume 487; that total, too, fell short of filling the entire volume.
In the last few decades, the anticipation for the end of the Term has also been built on the number of major decisions that are announced in the final days or even on the last day. The suspense has been palpable in recent Terms. The same-sex marriage ruling, Obergefell v. Hodges, was announced on Friday, June 26, 2015, and King v. Burwell, upholding the Obama administration’s health care subsidies, had come the day before; in somewhat of an anticlimax, the Court sat again the following Monday. In 2014, the much-watched Burwell v. Hobby Lobby Stores, Inc., came on the last day of the Term, June 30, upholding an opt-out for employer-provided contraception coverage for closely held companies with religious objections. United States v. Windsor, voiding a key portion of the federal Defense of Marriage Act, was decided on June 26, the final day in 2013; Shelby County v. Holder, striking down part of the Voting Rights Act, was issued the day before. Finally, few people can forget the drama of June 28, 2012, when the Court narrowly upheld the Affordable Care Act’s individual mandate, in National Federation of Independent Business v. Sebelius, on the final day of the Term.
Occasionally the end of the Term is surprising in a number of ways. In 1986, the Term did not end until July 7, extraordinarily late by any measure. ABC News had reported three weeks earlier that the Court on June 16 would strike down a major federal deficit-reduction law, known as Gramm-Rudman, on separation-of-powers grounds. The decision, Bowsher v. Synar, was not released until July 7. Chief Justice Warren Burger, who coincidentally was ending his tenure that day, often emphasized the need for secrecy at the Court because decisions with significant economic impact might have a profound effect on the stock market if the results were leaked prematurely. Some have even speculated that the Court held up the Bowsher case because of the earlier leak. Ironically, though, it was widely known within and outside the Court that July 7 would be the final day of the Term and that Bowsher, one of those potential market-moving cases, would be decided that morning. The impact on the financial markets from this certainty that the decision would be released was non-existent.
The number of opinions and volume of pages are not the only suspense at the end of the Term. There has long been a fascination with the final date on which the Justices will be on the bench. For many years in the 1960s and 1970s, the focal point for guessing the final decision day had nothing to do with jurisprudence. Justice William Brennan spent his summers in a cottage on Old North Wharf on Nantucket. As experienced travelers to the Massachusetts island know well, to take a car to Nantucket in the summer, it is necessary to call the ferry company (or now to go online) and make a car reservation immediately after New Year’s Day in January. So if you could find out the date of Brennan’s ferry reservation, you could predict with some accuracy the final decision day of the Court’s Term. Ironically, court watchers continued to try to find Brennan’s ferry reservation date for some years after 1982, when he stopped renting a Nantucket cottage.
Another source of interest at the end of the Term has been speculation about retirements of Justices. Rumors circulate like western wildfires during May and June every year that one or another Justice is planning to retire. The reports take on a life of their own, whether they are based on any fact or not. Inevitably there are retirements, and they used to occur at the end of the Term.
It is difficult to think of a more dramatic moment on the final day of a Term than June 26, 1987. After the Court announced 179 pages of decisions in five cases, Toni House, the Court’s public information officer at the time, left her office very suddenly and rapidly, only to be seen a short time later running down the corridor of the Court to the press office. Within moments she had announced the retirement of Justice Lewis Powell, often viewed at the time as the swing vote or center of the Court. Powell’s retirement led to the nomination of and subsequent battle over Judge Robert Bork, who was rejected by the Senate, giving way eventually to the seating of Justice Anthony Kennedy in 1988.
Powell’s retirement was not the only one that brought end-of-Term drama. On June 27, 1991, after the Court handed down six decisions totaling 314 pages of the U.S. Reports, Justice Thurgood Marshall announced his retirement. This one would lead to the fight over the eventual confirmation of Justice Clarence Thomas.
It has become less a matter of custom in recent years for Justices to wait and announce their retirement on the final day of the Term, and so that element of drama is less readily apparent these days.
Still, with a number of important rulings still to come this month, the suspense is back once again, as it always is.