As a Canadian, I have long felt that the way people in wintry climes deal with the weather is not so much by displaying unusual hardiness, and more by forgetting utterly each spring just how bad winter is and not remembering it until the next winter rolls around. (The same, I find now, holds true for summers in the Deep South.) I feel rather that way about the end of Term of the Supreme Court each year.
I assume that it would be possible for Congress to redraw the Court’s schedule to require it to operate on a continuing basis, with the continual rolling out of decisions, including those in “big” cases, rather than ending each year with a single, overpacked issuance of “blockbuster” opinions. I’m sure I’m wrong on some of the details, but I do believe the Canadian Supreme Court’s schedule works closer to that than to the American model. This scheduling change would not do away with all of the aspects of the mighty “end of Term” that disturb me–which, alas, I will not detail here, or at least not right now–but I think it would help. I am less certain that it would be within Congress’s power, but it would not be a bad thing either if it required the Court to issue opinions (or to DIG the case, hold it over for reargument, or otherwise deal with it) by a date certain after oral argument in each case, putting the whole institution on something like the ten- or twelve-day deadline regime that Justice White used to insist on for his clerks as they wrote opinion drafts. It might not suit the Justices’ plans for Aspen, Vienna, or wherever else they care to spend their summer, but obviously that is of little concern to anyone but them.
Both rules, I think, would mitigate, although hardly eliminate, some of the worst by-products of the Court’s intersection with politics. Aside from having other matters on their plates, however, I imagine that the political branches see some benefit to them in having blockbuster releases around the same time that incumbents and challengers are on the hustings, giving them a windmill to tilt at and an occasion for fundraising. If for no other reason, I doubt that they have much incentive to propose or insist on any changes to the current schedule. Too bad!
Although I will decline for now to list the things that disturb me about the end of Term and the commentary that surrounds it, I will make one observation: I find it distressing that much of the academic commentary around the end of Term, including academic commentary written for the public, is aimed at the goal of reducing or eliminating the multiple or alternative meanings suggested by any major decision of the Court–indeed, as I observed in an article last year, at rendering some of those meanings “unutterable”–rather than proliferating them. Of course there are many good or understandable reasons that this should be so, as well as the many bad and understandable reasons for it. But I still find it distressing, and I wish that more academics, when it comes to rendering judgments on contemporary events, operated on something like the semi-apocryphal schedule suggested by Zhou Enlai.
Posted by Paul Horwitz on July 1, 2015 at 03:18 PM
Comments
That sounds like the separation of powers question that was left unresolved in Miller v. French, 530 U.S. 327, 350 (2000) (“we have no occasion to decide whether there could be a time constraint on judicial action that was so severe that it implicated these structural separation of powers concerns”).
Posted by: William Baude | Jul 2, 2015 11:07:04 AM
Having the Court decide all cases that are on appeal from a lower court within a certain time frame should fly under Article 3.2.
That said, I don’t see what purpose this would serve. SCOTUS decided Obergefell in two months. The Supreme Court of Canada takes six months for big-ticket cases and two months for the (relatively) trivial ones. Although, the SCC does not split 5-4 anywhere as frequently or as predictably as SCOTUS.
Canada’s rolling approach may possibly be helped by the Chief’s preference for seven-judge panels instead of en banc hearings. This frees up two judges who can work on the other cases.
PS: Stupid question, how do you italicize words?
Posted by: Pranav | Jul 2, 2015 6:37:00 AM
There is a nice constitutional question whether Congress could require the Court to decide a case within a certain time period. Does telling the Court when it must decide come too close to telling it how it must decide? It’s worth noting that when Congress wanted to speed the district courts along, it did not impose a flat requirement for when motions must be resolved, but instead relied on shaming–creating the “six-month list,” a report to Congress on any motions that have been pending for more than six months. It worked–Judges used to scramble every August and February to clean things off the list. But it did so without a flat requirement.
Posted by: Howard Wasserman | Jul 1, 2015 11:46:48 PM