SCOTUS for law students: Still deciding in July
on Jul 7, 2020 at 6:49 pm
By law, the Supreme Court term begins on the first Monday in October. By custom, the justices finish their work in late June (although the term does not technically end until the next term begins). So when the justices are still handing down decisions in July, it is buzzworthy in Washington and among court-watchers everywhere.
This year’s July opinion releases are all the more notable because this is the first time since July 1, 1996, that the court’s decisions have slipped past the end of June. The last time before that was July 3, 1988.
Our memories are short, however. During the tenure of Chief Justice Warren Burger (1969-1986), it was common for terms to run this late. Indeed, in 1976 and in every year from 1978 through 1986, the court handed down decisions in the first week of July. The decision announcements even ran past the July 4 holiday in 1976, 1983, 1984 and 1986.
It is important to remember that most of the cases left by the court until July this year were not argued until May, in the special telephone arguments set up by the justices after the COVID-19 pandemic forced closure of the building. Deciding a case in early July that was not argued until May is actually a quick turnaround, considering that complex or controversial cases that are argued in October often remain undecided until June.
That said, this term seems likely to yield about 60 decisions in argued cases, short of the Roberts Court’s usual average because the pandemic caused the court to reschedule 10 cases for argument next term. When the Burger Court was slipping into July, the justices were deciding as many as 150 cases in a term, well more than double what the justices are handling today.
The plans of individual justices have sometimes played an important role in scheduling. Throughout much of the 1960s and 70s, Justice William Brennan spent his summers on the Massachusetts island of Nantucket. To take a car to Nantucket, as Brennan did, requires making a ferry reservation just after New Year’s Day. It was established lore at the court that if you wanted to figure out when the term would conclude, you had only to learn the date of Brennan’s ferry reservation.
Brennan stopped going to Nantucket after the summer of 1981. But when William Rehnquist became chief justice in 1986, a new calendar incentive came into play. Rehnquist had a summer home in Greensboro, Vermont, and it was well known at the court that he wanted to get there as early in the summer as possible.
The dates discussed thus far relate to regular court schedules. From time to time, there have been special summertime court sessions that went well beyond the June/early July recess dates. The court issued decisions, for example, on July 24 and 25, 1974. On July 24, the justices ruled 8-0 in United States v. Nixon, ordering President Richard Nixon to turn over tape recordings and other materials to the U.S. District Court for the District of Columbia. The decision led to Nixon’s resignation on August 8.
The next day, the court ruled 5-4 in Milliken v. Bradley that a court-ordered desegregation plan for the Detroit public schools could not involve surrounding school districts. The case was argued in February but not decided until July 25. The court term before the special session had ended on June 26.
The court also had a special session on September 9, 2009, to hear reargument in Citizens United v. Federal Election Commission, which was first argued on March 24, 2009. The decision was issued in January 2010; the special September argument presumably gave the court more time to decide the cases.
Before the current term, the latest regular date for issuing opinions in the last 60 years was July 7, 1986. There was no special circumstance that caused the term to run so late that year. It was just a matter of workload. The court issued full written decisions in 146 argued cases that term. In two other years, 1976 and 1983, the court continued until July 6.
It seems that as the pandemic has affected so many things in the world around us, it will also lead the court to a new record July date for issuing opinions from its regular argument sessions.