One Lonely Opinion (But Stay Tuned For Monday)


It's late January, and not since the 1860's has the Supreme Court taken so long to issue opinions: only one opinion in an orally argued case.  And even if you take into account non-argued per curiam opinions (unsigned opinions "by the court"), there have only been a total of five.  And to top it all off, the one opinion that was in an orally argued case, Hamer v. Neighborhood Housing Services of Chicago, was a twelve-page unanimous opinion on the difference between "jurisdictional" deadlines and "claim processing" rules, a discussion only appellate law nerds (ahem) could love.  Why is this?

Well, as the least leaked branch of government, we really don't know, but here is one idea.  While the Court has a lighter than average docket by the number of cases, they have more than made up for it with the nature of the cases before them.  Consider these cases, the first two (at least) are in the "landmark case" category, and all of them are very significant: Masterpiece Cake Shop (First Amendment/free speech/free exercise/discrimination); Gill v. Whitford (the political gerrymandering case); Carpenter v. United States (the Fourth Amendment cell data case); Byrd v. United States and Collins v. Virginia (Fourth Amendment automobile and curtilage cases);  Husted v. Randolph Institute (voting rights). These cases will be hotly contested, generating close votes (5-4 or 6-3) with a majority and dissent(s), and probably concurring opinions, in all of them.  None of these are like Hamer, and all take time and a lot of it.  Plus, these are only the most talked about argued cases: there are 27 others (including a military justice case) that have also been argued.  If the term arguments ended here, no one would seriously argue that the October 2017 term was not important.   

But there are also nine scheduled for argument in February, including a union dues case and another voting case.  Just this Friday, (January 19) the Court granted certiorari in the "Travel Ban 3.0" case out of Hawai'i.  It will most likely be argued on April (the earliest would be April 16).  ("Travel Ban 3.0" is also pending before the Fourth Circuit, but no opinion has been issued).  Also on Thursday (January 18), the Solicitor General filed a petition for certiorari in the DACA case, trying to get the Court to take the case before the Ninth Circuit renders judgment. (See my post of January 17 for more on this case).  It will almost certainly be a very busy February through June.

There is, however, always Monday, the day on which orders "come down" (are issued) at 9:30 and opinions at 10:00.  And there is some reason to believe that we will see opinions this Monday (January 22).  How do I know this, and how can you?

To be fair, no one "knows" this.  Only the justices, their clerks, and the staff in the Clerk's and Public Information Office actually know when opinions are going to be issued.  However, people in the press who follow the Court, and who I follow on Twitter, are adept at picking up hints (and they are just that, hints).  Call then educated guesses. For example, Greg Stohr, who covers the Supreme Court for Bloomberg News, thinks opinions will be issued Monday.  SCOTUSblog also hints at this.  And some of it, I think, is that Court-watchers just can't fathom why it's taken so long, even though they would agree that the cases are far more weighty than usual.

Not into Twitter?  Well, just call the Public Information Ofice of the Supreme Court.  That's right.  Just dial 202-479-3211 and press 7, the "Opinion Line".  It's an automated line, although certain other numbers will get you to real people during regular hours (for example, press 1 if you are a member of the press corps).  Other numbers different from the Public Information Office are available to reach the Court 24/7 for emergency matters, most notably death penalty cases).  I called and, yes, they said there will be orders issued on Monday and "there is the possibility of opinions" being released as well.

So put that number in your contacts, and give the Court a call.  

And let's hope the possibility turns into reality,

See you late Monday/early Tuesday with the day's events.






































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