Legal Commentary

So . . . Where Are The (Argued) Supreme Court Opinions? Part III

By John Elwood

The Supreme Court released decisions in four argued cases today, the 64th day of the Term (thus tying OT2007 and OT1984 for the latest initial hand-down days of the postwar period, as outlined in my last two dull posts on the subject here and here). I am attempting to teach my son about the humor of repeating something long past the point that it has begun to annoy others (he is a quick study, but the apple doesn?t fall far from the tree), so I figured I should have another post on the subject.

Three of the opinions, in Mohawk Industries, Inc., v. Carpenter, Alvarez v. Smith, and Union Pacific Railroad v. Brotherhood of Locomotive Engineers were from the October sitting. None had substantial separate opinions. The delay in getting some of them out suggests to me that something else must be going on up there.

Alvarez v. Smith, for example, is a nine-page opinion by Justice Breyer finding the case moot, followed by a three-page concurrence in part/dissent in part by Justice Stevens. Decisions vacating the lower court?s judgment on mootness grounds are typically among the quickest to write, and although there?s a bit of a wrinkle on the vacatur question here (because the Court concludes the case is more akin to mootness through happenstance than mootness through settlement), there?s nothing in there that suggests it should have taken 55 days to produce. Again, it suggests that Citizens United opinions may be taking a lot of the Court?s energies.

In a similar vein, I wonder what the back-story is on Union Pacific. To be sure, Justice Ginsburg?s opinion is 17 pages long, but she is among the fastest and most hardworking of the Justices (as noted in a semi-humorous and largely factual Green Bag piece published back during the 20th Century), and the opinion was unanimous. The Court wound up not resolving the question presented and instead disposed of the case based on an alternative ground. I wonder whether the initial draft of the opinion addressed the question presented, and the opinion assumed its present shape only after memo traffic. Or I suppose it might be Citizens United.

That represents the last of my baseless speculation on this topic. We now return you to your regularly scheduled program.

UPDATE: One of the commenters suggested that the other Justices may have been holding off so that Justice Sotomayor, the new Justice, could be first to announce an opinion.  Perhaps, but I?m aware of no established tradition of doing that, and the Court hasn?t extended that courtesy to the last three Justices to join the Court before the beginning of a new Term.  Chief Justice Roberts, Justice Breyer, and Justice Ginsburg each issued their first opinions between three weeks and four months after their first Term?s initial hand-down day (Roberts: 12/7/05 vs. 11/8/05 for JPS and SGB; Breyer: 3/19/96 vs. 10/31/95 for AS and AMK; Ginsburg, 12/3/93 vs. 11/9/93 for SOC (2 opinions)?see what I mean that Justice Ginsburg is normally speedy?).  While Justice Scalia had an opinion out on the first hand-down day of his first Term, that was not so much because the other Justices went slow for him as he went fast.  Justice O?Connor and he both announced opinions on 11/4/86, but O?Connor?s was argued 10/7, and Scalia?s was argued 10/14.  I don?t know if this is related to the speed with which he did the opinion, but the Reporter of Decisions later issued adhesive corrected sheets for all but one page of that decision. 

OK, now that really will be my last word on this subject.

Full post as published by The Volokh Conspiracy on December 08, 2009 (boomark / email).