We All Lose When the Supreme Court Procrastinates

Court-watchers thought one of the big decisions would come down Thursday. Instead, almost all the high-profile ones will be handed down next week.
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The United States Supreme Court issued three opinions Thursday morning, in cases about arbitration procedures, sentencing rules, and the first amendment's application to a federal program designed to reduce the overseas spread of HIV. The first ruling is another expression of the Roberts Courts slavish devotion to corporate interests. The second a reminder of the complexities of the dynamic between state and federal criminal law. And the third ought to animate the conversation going forward about federal funding for controversial programs that seek to better the lives of people around the world.

The three decisions brought down to 11 the number of cases remaining on the Court's docket for this term (about 15 percent of the entire total). This guarantees that we will have two and possibly three decision days next week before the justices jet off for their book tours, speaking engagements and other forms of mischief they'll enjoy before the first Monday in October. And it means that the Court will unload on an expectant nation all four of the biggest cases of the term within the span of a few days -- or perhaps on the very same day.

So while we all wait patiently for the United States Supreme Court to issue historic rulings on same-sex marriage, voting rights, and affirmative action perhaps it's time to step back and ponder from afar the self-defeating process by which we get our rulings from the justices. It has been true for many decades that the justices leave the most controversial and contentious decisions for the end of the term. There is nothing inherent wrong about this. It tends to track human nature -- we often leave the toughest chores, the most difficult decisions, for last. And evidently so do the justices.

But I believe the schedule and timing of opinion releases this year demonstrates that the trend is getting markedly worse. I have my own (cynical) theory: perhaps it's time to ponder whether the Court is manipulating the timing of the release of its most divisive rulings to massage the impact of those rulings upon the court of public opinion-- dumping them all upon us in the span of just a few days to minimize the political and legal and cultural fallout from any single ruling. The cognitive dissonance that would result -- the cacophony of criticism swirling in all different directions at the same time -- would be more about the noise than it would be about the signal.

Let me offer an example to try to illustrate the point. Let's suppose the Court next week issues its ruling on same-sex marriage the same day that it guts Section 5 of the Voting Rights Act. There is only so much airtime on radio or television. Only so many inches of print space. Only so many links that can be surfed online. If this scenario unfolds, and it's now a reasonable possibility, none of these monumental decisions would get the media attention it deserves because of the existence of the other notable decisions. There would be a diffusion of voices that would serve only the image of the Supreme Court itself.

Saving the big news (or the bad news, depending upon your point of view) for the end is the judicial equivalent of the old litigation trick of dumping boxes and boxes of pretrial discovery upon opposing counsel on the eve of a hearing. Or the old government trick of releasing bad news to the world late on a Friday night when journalists already have downshifted for the weekend. If it is happening this way -- and, remember, I have no proof that it is -- it would be a form of spin I find unbecoming from the Court. The term is long. The number of cases the justices are accepting for review is far fewer than it was decades ago. We shouldn't have to endure the fire drill we are going to have to endure next week. There is no call for it.

Veteran court reporters and other defenders of the institution no doubt will quickly respond here that the Court honorably hands out its opinions once they are done -- no sooner and no later. That may be so. I cannot refute it directly because none of the justices ever returns my phone calls. But if it so it is still doesn't explain why it is acceptable for the Court to save 15 percent of its decisions -- including many of the most important -- for the final hours of its term. How many employers would tolerate that level of procrastination from their employees? How many teachers would be comfortable with that level of delay from their students?

So while I am unwilling to ascribe bad faith to anyone, I am skeptical about the notion that there are no opinions ready today in any of those remaining 11 cases left on the docket. I am skeptical about the proposition that the justices and their bright clerks, having lingered on some of these cases for many months, are suddenly going to get all 11 of the remaining cases ready to go in the next few hours. The affirmative action case, Fisher v. University of Texas, was argued more than eight months ago. If the Court can't agree on a result by now it should list the case again for oral argument. A far less controversial case, Vance v. Ball State, was heard in November. Where is the ruling?

Next week will surely be a week of work I will likely never forget so I offer no complaint here. My point is that I believe the Supreme Court doesn't just owe us a more timely resolution of (the increasingly fewer) cases it takes. The justices also owe us all the opportunity to reasonably absorb the decisions they do hand down in a fashion that increases the chances those decisions will be accurately and adequately evaluated as quickly as possible. The sound and the fury next week, as the decisions rain down upon us like cicadas, will undermine that possibility. And from an institution that is the least accountable and transparent anyway, that's a shame.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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