As Thanksgiving draws near, I began wondering where the argued Supreme Court opinions are. Sure, we’ve had three per curiam summary reversals, but usually by this point in November, we’ve had at least an opinion or two released in an argued case. The next hand-down opportunity comes on November 30, and if we get an opinion then, it will be only the third time in the last 20 years we’ve had such a late initial hand-down; if they wait until December, we’re entering even more rarified company. (For those plagued with insomnia, a listing of initial hand-downs going back to October Term 1989 is available after the jump.)
The Term didn’t have an especially late start (Oct. 5), which is earlier than some (OT96 began on October 7, and SOC still got the first opinion out by 11/6). And the October sitting this Term had its share of relatively straightforward cases, not that a case needs to be particularly straightforward to be on the fast track. (During OT97, SOC issued State Oil v. Kahn by 11/4, overruling longstanding antitrust precedent on vertical price maintenance.)
The reduction in speed largely may reflect the change in personnel. Justice O’Connor seemed to relish being the first to release an opinion, and released on opinion on the first hand-down day in 11 of the 18 terms in the sample for which she was on the Court. Maybe without her to chide colleagues about holding up her opinions, dissents aren’t coming in with the requisite speed. And it may be that the new Chief has discouraged a rush into print.
Finally, it may be that the Term (effectively) began too early, back on September 9–at least inasmuch as Citizens United was argued that day, and separate writings in that case may be keeping the Justices from their other opinions. But things should be clearer early next week.
UPDATE: At the risk of looking even more deranged than usual, I took advantage of a quiet morning before Thanksgiving to add stats for OT88-OT68. It shows that this term is shaping up to be one of the four latest starts of the past 41 years. (Although admittedly, it’s always within the range of a few weeks, or sometimes even days.)
STILL ANOTHER UPDATE: I’ve added information back to OT1946 after the jump.
OT08 11/12 Roberts
OT07 12/4 Roberts, Ginsburg
OT06 11/13 Kennedy (Ayers v. Belmontes)
OT05 11/8 Stevens, Breyer
OT04 11/9 Rehnquist, O’Connor
OT03 11/12 Scalia
OT02 11/5 Rehnquist, O’Connor
OT01 11/13 O’Connor, Ginsburg
OT00 11/7 Scalia, Ginsburg
OT99 11/30 Breyer
OT98 11/3 O’Connor
OT97 11/4 O’Connor, Ginsburg
OT96 11/6 O’Connor
OT95 10/31 Scalia, Kennedy
OT94 11/1 O’Connor
OT93 11/9 O’Connor (two opinions)
OT92 11/16 Stevens
OT91 11/5 O’Connor
OT90 11/6 O’Connor
OT89 11/7 Marshall; O’Connor
OT88 11/8 Marshall
OT87 11/10 Rehnquist
OT86 11/4 O’Connor, Scalia
OT85 11/18 Powell, Rehnquist
OT84 12/4 Stevens
OT83 11/1 Marshall, Blackmun, Rehnquist
OT82 11/15 O’Connor
OT81 11/10 White, Blackmun
OT80 11/17 White
OT79 11/13 Stewart
OT78 11/28 Marshall, Rehnquist
OT77 11/8 Blackmun, Stevens
OT76 11/2 Stewart
OT75 11/12 Blackmun
OT74 11/19 Douglas, Blackmun, per curiam
OT73 11/19 Douglas, Stewart, White, Marshall, 2 PCs
OT72 11/7 Stewart
OT71 11/8 Douglas
OT70 11/23 White
OT69 10/29 per curiam (1st signed argued opn was 12/8)
OT68 10/15 Black
OT67 11/6 Douglas, Stewart
OT66 11/7 Douglas
OT65 11/8 Brennan, White
OT64 11/9 Douglas
OT63 11/12 Harlan, 2 PCs
OT62 11/5 Goldberg, per curiam
OT61 11/6 Clark, per curiam
OT60 11/7 Warren, Black, Brennan
OT59 11/7 per curiam
OT58 11/10 per curiam
OT57 11/12 Douglas, per curiam
OT56 11/5 Warren
OT55 10/17 per curiam decree (original jurisdiction case); first “opinion” 11/7 by Black
OT54 11/8 Warren, Frankfurter, Minton
OT53 11/9 Warren, Black, Frankfurter, Minton, per curiam
OT52 11/10 Black (2 opinions), Douglas (2 opinions), Jackson, Minton
OT51 11/5 Vinson, Douglas, Jackson, 2 PCs
OT50 11/6 Frankfurter, Minton
OT49 11/7 Reed, Jackson (2 opinions), Burton, Clark, Minton, 2 PCs
OT48 10/21 per curiam
OT47 11/10 Black, Frankfurter, Douglas, Jackson
OT46 11/18 Black, Douglas, Jackson
readery says:
The Justices may need time to adjust to Sotomayor
November 25, 2009, 12:02 amMike B. says:
This Supreme Court shorthand is inducing flashbacks to my days of crossing the bridge of Scientology. I didn’t know that L. Ron Hubbard had returned from his research in outer space to deliver OT09, let alone OT10-OT99.
November 25, 2009, 1:44 amOrin Kerr says:
I never quite understood the hurry to get opinions out. A Justice only writes about 8 or 9 majority opinions a year, and that number is generally fixed. The most important thing is for them to be as good as they possibly can be, not published as early as they can be. My 2 cents, anyway.
November 25, 2009, 1:54 amD.O. says:
Judging by OT08 and OT07 Roberts is an early bird. Runs against his hypothesized “don’t rush to print” attitude.
November 25, 2009, 2:03 amspo says:
Well, the one slam dunk, McDaniel v. Brown, was taken off the argument calendar. The Court still hasnt done anything with it, which makes it likely another per curiam opinion is coming down the pike. The panel may get slammed even worse than the panel in Belmontes.
November 25, 2009, 5:42 amSara says:
Ar the number of per curiums high? If so, than that could account for time spent.
November 25, 2009, 7:26 amOren says:
Hopefully you aren’t this indulgent with your students …
November 25, 2009, 8:42 amFantasySCOTUS.net: Where are the opinions for OT09? Predict now! | Josh Blackman's Blog says:
[...] Volokh, Professor Elwood queries why the Supreme Court has not handed down any opinions yet. Historically, opinions have been issued [...]
November 25, 2009, 8:47 amtroll_dc2 says:
Isn’t there a tradition that the first opinion signed by a new justice be unanimous (and that sometimes a case is selected for argument just because it is certain to be unanimous)? (I don’t know whether it is supposed to be the first signed opinion of the Term.) Perhaps the Court is trying to get Citizens United, which technically is an OT2008 case, out of the way first.
November 25, 2009, 9:21 amTerrivus says:
Never heard of that, and not supported by recent history (the first opinions released in OT06 and OT08 weren’t unanimous). If there’s a tendency for unanimous opinions to appear first, that’s because, obviously, there’s no need to wait for dissents or for different authors to have to change their opinions in response to each other.
EDIT: Whoops — misread your post. You were referring to opinions by a new Justice. My mistake.
November 25, 2009, 9:54 amDave N. says:
I agree. The Ninth Circuit found insufficient evidence to sustain the conviction, claiming to follow Jackson v. Virginia.
In his brief, Brown (the prisoner) disavowed that Jackson provided the correct standard, even though he had argued that standard in the courts below. The Warden’s Reply Brief noted this change in tactics. Shortly thereafter, the Supreme Court took the case off calendar since no one was actually defending the Court of Appeals’ decision.
At least as of the time the case was taken off calendar, the Court had not decided whether to appoint new counsel to argue the Court of Appeals’ position or to issue an opinion without oral argument.
I should note that I am familiar with this case because I co-authored the Warden’s briefs.
November 25, 2009, 10:44 amAdam B. says:
I assume Citizens United has to come first, because they had it argued early so that its holding would be in place for the 2010 midterm elections. The Illinois federal primaries are February 2, 2010.
November 25, 2009, 11:16 amOrin Kerr says:
Oren,
Actually, I do spend a great deal of time grading: I want to make sure that the grades I give are as accurate as possible given how important they are to students’ careers. Some professors would rather just grade quickly so they can go on vacation sooner and figure the inaccuracies will balance out in the end (and that students will never know it), and I don’t follow that.
November 25, 2009, 12:28 pmDave N. says:
I should have noted in my previous post that prior to the case being taken off calendar I had predicted to several colleagues that Brown v. McDaniel would be Justice Sotomayor’s maiden opinion, since it conflicted with an unpublished 2nd Circuit decision where then Judge Sotomayor and her colleagues disagreed with the theory Brown presented for the first time in the U.S. Supreme Court.
November 25, 2009, 12:57 pmRoy Englert says:
The chance of an opinion in November is essentially zero. The Court — which values its traditions — has a strong tradition of not handing down any opinions on Mondays when it is both releasing an order list and hearing oral arguments. The first “regular” opinion day of the sitting that begins November 30 is Tuesday, December 1.
November 25, 2009, 1:10 pmtroll_dc2 says:
Until Chief Justice Burger changed the then strong tradition, decisions were handed down on Mondays. So much for tradition (and so much more for overworked news services and the fact that important decisions sometimes did not get the publicity that they deserved).
November 25, 2009, 1:16 pmASlyJD says:
Prof. Kerr,
I think Oren might have been referring to the deadlines you presumably give your students for their papers. It isn’t quite a fair comparison, as the judges aren’t asking for another day or two in June to make the last touches. :)
November 25, 2009, 3:38 pmWednesday Round-up | SCOTUSblog says:
[...] at The Volokh Conspiracy, John Elwood discusses possible reasons why the Court has yet to hand down an opinion in a case [...]
November 25, 2009, 5:51 pmDIff says:
Its slightly misleading to say an opinion coming after 11/30 would be on such rarefied ground because its only come that late 3 times in the past twenty years, when one of those was 2 years ago.
Although Roberts issued the first 2 opinions of the term the past two years, that hardly shows he’s an “early bird”, since those opinions were not ‘early’ for first opinions of the term. It may also suggest that Roberts has adopted a custom of authoring the first opinion as chief.
Finally, how did these comments become the proper arena for a “discussion” of the merits of Brown v. McDaniel??
November 25, 2009, 8:48 pmDavid H says:
Maybe the absence of Justice O’Connor is part of the reason for the delay? From the stats, I see she was first off the mark (or tied for first) about a third of the time. If she was of the “get it done today” school of thought, it could have pushed the average starting date earlier.
November 26, 2009, 5:44 amGlen says:
Perhaps they need the time to adjust Sotomayor.
November 27, 2009, 12:30 pmMyrtle Beach Attorney says:
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December 2, 2009, 9:13 pmThe Volokh Conspiracy » Blog Archive » So . . . Where Are The (Argued) Supreme Court Cases? Part Deux says:
[...] Orders are expected Monday, and thus, as Roy Englert noted in the comment thread of my last post on this subject, it is probably out as a hand-down day for opinions in argued cases, since the [...]
December 3, 2009, 11:53 pmThe Volokh Conspiracy » Blog Archive » So . . . Where Are The (Argued) Supreme Court Opinions? Part III says:
[...] hand-down days of the postwar period, as outlined in my last two dull posts on the subject here and here). I am attempting to teach my son about the humor of repeating something long past the point that [...]
December 9, 2009, 9:27 am