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Sunday, December 04, 2022

The Supreme Court tends to preserve the biggest rulings for last – a constitutional expert explains some good reasons

The U.S. Supreme Court rejected a New York law on June 23, 2022 that imposed strict restrictions on carrying a handgun in public. It was a much-anticipated decision, as the court is still issuing opinions before the end of its term in the next week or two.

But people have been left waiting for when exactly the court’s ruling on Dobbs v. Jackson Women’s Health Organization, which Roe v. Wade can be overthrown, will be issued.

The court is announcing which days it will announce rulings and is only scheduled to announce more on June 24. No one outside the court knows what major rulings will be published when – or if the court can decide to release more opinions in early July.

There is a reason why the court remains so mysterious and why its abortion ruling is likely to be one of the last before the court releases for the summer. We asked constitutional scholar and high court expert Stefanie Lindquist to explain what is behind the court to keep a tight lid on his work.

A Black-And-White Photo Shows Clarence Thomas Sitting In An Office Surrounded By Young People In Formal Attire.
Judge Clarence Thomas of the U.S. Supreme Court spoke in 2002 to his legal clerks.
Dave Hume Kennerly / Getty Images

Does research support this idea that the court makes the most high-profile rulings for last storage?

Very careful research has been done by many prominent scholars and judges who have tested the proposition that the court’s most important decisions are rendered late in the term. They measured importance based on the extent to which the New York Times covered that case. And their research has confirmed that it is absolutely true that the most important decisions that the court makes – those that overturn a precedent, for example – are only announced at the end of the term.

One reason may be because the court is particularly careful about the content of those decisions. And because they may have involved more negotiation on the content of the opinion itself, or involved the extra work of writing disagreements and consensus.

Is it clear why they are releasing these big decisions at the end of the term?

There is some speculation that they want to wait to issue these opinions just before they leave town. Because they are social beings like we all are, some speculate that they do not want to discuss these cases in their social circles. But I think it’s very likely that it’s a combination of workload and because these cases are more time intensive. The judges also understand the public impact these cases can have. But in the end, it’s not clear why they’re doing this.

The court is known for its secrecy. What’s the point of the court being so tight-lipped about its decisions?

The court is an institution that, over time, has very carefully maintained its legitimacy in the eyes of the public.

The late Judge Antonin Scalia required some of his clerks to sign an agreement respecting the privacy of the court’s deliberations. He told them that if they violated this secrecy, he would do everything in his power to undermine their future careers.

The court is very careful to ensure that once it issues an opinion, it is the final opinion. The disclosure of any internal and potentially divisive dynamics associated with the court’s decision – making process could undermine the power and effect of a Supreme Court decision.

A Police Officer Is Seen Standing Outside A Suburban House, Next To A Large Poster Showing A Drawing Of Brett Kavanaugh'S Face, With The Word Liar Above It.
In June, police kept waiting outside the Supreme Court Judge Brett Kavanaugh’s home while protesters marched past his home.
Nathan Howard / Getty Images

Why do they not even say when a specific decision will be announced?

I think it is probably difficult for them to predict the exact timing of decisions. Remember, the court’s final opinions are the result of a negotiation between the individual judges. And until they are ready, they can not necessarily say, “This is the day we are going to sign off,” especially at the end of the term when many of these very important decisions are announced.

You can negotiate and proofread until the last minute. The judges no doubt realize that these extremely important decisions will end up in law school textbooks. They are going to be read carefully by journalists. And the judges are a highly professional group of individuals.

They are therefore concerned about every opinion they issue. But with these opinions they issue at the end of the term, they tend to be the most important decisions they make – they are even more concerned about being precise in every sentence they write.

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