Politics

06.21.13

What’s Taking the Supreme Court So Long?

The biggest cases are still to come—and we should be celebrating this drawn-out finale, writes Richard L. Hasen, in defense of the court’s end-of-term crunch.

With everyone anxiously awaiting potentially blockbuster decisions on issues from affirmative action to voting rights to same-sex marriage, it is easy to criticize the Supreme Court for being too slow.

After all, Fisher, the affirmative-action case involving the University of Texas, was argued in Supreme Court back in October. By historical standards, the court is deciding very few cases: it issued 167 with opinions in the 1981 term, but is expected to decide only 77 this term. Why save all of the big calls for the end? Are the justices trying to create maximum suspense to get more attention?

These criticisms fundamentally misunderstand both the modern Supreme Court’s mission and the psychology of the justices. There may be a lot of reasons to criticize the court, but the end-of-the-term crunch is not one of them.

Consider first the Supreme Court’s mission. Justices are unlike legislators, who simply vote to express their preferences. Justices are expected to give reasons for their decisions. Further, the court on some of the toughest questions is divided along strong ideological lines. For example, a majority opinion from a conservative justice can generate a dissenting opinion from a liberal justice. The dissenting justice won’t just say “I disagree,” but will offer reasons—reasons that the dissenting justice writes not only for history but in the hopes that one day a majority of justices will change their minds and adopt the dissenting view in a majority opinion. Both a majority and dissenting opinions will be circulated within the court, and each opinion will be modified numerous times to respond to the arguments of the other side, and to respond to the concerns of other justices who may join one or more of the opinions. Sometimes a justice will agree with the result but not with the reasoning of an opinion, and that justice will write separately, prompting another round of revisions.

There are 11 cases remaining for the court to decide, and it is likely that all 11 will be decided by the end of next week. But there are no guarantees.

It is easy to see why, in the most difficult cases, this process can take time. If we want our justices to be deliberative, comprehensive, careful, and transparent, we should celebrate, not bemoan, the fact that the hardest opinions come at the end.

The justices also have their own personal reasons for wrapping things up. Many commit to teaching in very nice locations over the summer. Some of the clerks are ready to leave, too, after a grueling year in a tough job. And, face it, no one really wants to be in humid Washington, D.C., at the end of June when they can be somewhere else.

Sometimes the end of the term surprises. A few years ago, at the end of the term, the court announced that it was not going to decide Citizens United v. FEC, the case that eventually held that corporations have a First Amendment right to spend money supporting or opposing candidates in elections. Rumor has it that Justice David Souter had circulated a draft dissent that criticized the majority for deciding the case on grounds that the parties had not fully argued in court. The court announced a re-argument in the case for the following term, giving the parties a chance to brief that argument.

This term too could end with surprises. One possibility is that a court majority will decide that it never should have taken California’s Proposition 8 same sex-marriage case to begin with (because those supporting the law did not have legal standing to defend it), and the case could be dismissed over the strenuous objections of other justices.

We just don’t know yet. There are 11 cases remaining for the court to decide, and it is likely that all 11 will be decided by the end of next week. But there are no guarantees. The court has gone into July to issue opinions when necessary.

So criticize the court all you want if you disagree with the decisions it will ultimately reach. But not for being too slow.