How Does SCOTUS Schedule Its Decisions?

Do the justices save the big cases for last to create suspense?

Protestors Alex Corona (C) and David Milligan (R), partners who say they wish to get married if the Defense of Marriage Act is overturned, rally in support of gay marriage in front of the Supreme Court in Washington, March 27, 2013.

Protestors Alex Corona, center, and David Milligan, right, partners who say they wish to get married if the Defense of Marriage Act is overturned, rally in support of gay marriage in front of the Supreme Court on March 27, 2013. Many journalists and were disappointed on Monday and Tuesday of this week, because they were hoping for a ruling on gay marriage.

Photo by Jonathan Ernst/Reuters

The Supreme Court handed down decisions on affirmative action, sex offender registries, harassment and discrimination in the workplace, liability for generic drug manufacturers, and the death penalty on Monday. On Tuesday the justices struck down part of the Voting Rights Act, addressed land use, and intervened in the adoption of an American Indian child. Still, many journalists left the court disappointed both days, because they were hoping for a ruling on gay marriage. How do the justices schedule decisions?

They release cases as each is ready, but they space out the bombshells. The justice representing the majority tells the chief justice when all of the opinions in a case are finished. The chief then decides when to announce the ruling. Usually, the opinions are handed down on the following Monday or Thursday—the traditional decision days—provided the printing office can have the slip opinion ready. Landmark cases, however, receive special treatment. The court is sensitive to journalists’ ability to report multiple important decisions in a single day and the public’s capacity to absorb them. (All decisions were handed down on Mondays until 1965, when veteran Supreme Court reporter Anthony Lewis complained to Chief Justice Earl Warren that reporters couldn’t handle the volume.) The court now tends to issue only one landmark ruling per day, and often issues opinions on consecutive days at the end of a term to space out major cases. There may be four decision days this week, because of the unusually large pileup of significant cases. The gay marriage decision could come Wednesday or Thursday.

That means the Supreme Court is either holding back the decision on the Defense of Marriage Act (so as to stagger DOMA, the Voting Rights Act, and affirmative action), or the justices are still working on it. Supreme Court insiders say it’s not unusual for the justices and their clerks to work until the last minute on complex cases. Fisher, the affirmative action decision announced Monday, is a good example. Decisions in most of the other cases argued in October 2012 were announced long ago, some as early as November. Fisher, however, bears all the hallmarks of a compromise decision: The justices allowed colleges to continue considering diversity as an admissions factor but ordered lower courts to subject such programs to higher scrutiny. Justice Anthony Kennedy, who opposed affirmative action in two landmark decisions in 2003, may have written a more sweeping opinion that failed to garner a majority, forcing him back to the drawing board and delaying the decision for months.

The chief occasionally uses his scheduling authority strategically, lobbying his fellow justices as he postpones announcing the majority opinion. In 1960, 12 African-American students were arrested during a sit-in at a whites-only Baltimore restaurant. The students appealed their subsequent trespass convictions to the U.S. Supreme Court, because the state banned segregation in restaurants after they were arrested. Justice Hugo Black wrote the initial majority opinion upholding the convictions, and he demanded that Chief Justice Warren hand down the decision immediately. Warren, however, stalled for time, while Black fumed impotently. Eventually, Warren and Justice William Brennan peeled off enough votes to remand the case to the Maryland courts for reconsideration.

By holding finished decisions back, the chief justice takes a calculated risk—the longer a case lingers, the higher the likelihood of leaks. The Supreme Court has historically been a low-leak environment, though. When former clerks have had the temerity to discuss the court’s inner workings, as some did after the Bush v. Gore decision, they have faced significant criticism. Still, if you’re interested in a particular decision and you know a Supreme Court clerk, he might drop a hint about which day you should hang around the court.

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Explainer thanks Lucas Powe of the University of Texas at Austin, author of The Supreme Court and the American Elite.