The Supreme Court released decisions in four argued cases today, the 64th day of the Term (thus tying OT2007 and OT1984 for the latest initial 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 it has begun to annoy others (he is a quick study, but the apple doesn’t fall far from the tree), so I figured I should have another post on the subject.
Three of the opinions, in Mohawk Industries, Inc., v. Carpenter, Alvarez v. Smith, and Union Pacific Railroad v. Brotherhood of Locomotive Engineers were from the October sitting. None had substantial separate opinions. The delay in getting some of them out suggests to me that something else must be going on up there.
Alvarez v. Smith, for example, is a nine-page opinion by Justice Breyer finding the case moot, followed by a three-page concurrence in part/dissent in part by Justice Stevens. Decisions vacating the lower court’s judgment on mootness grounds are typically among the quickest to write, and although there’s a bit of a wrinkle on the vacatur question here (because the Court concludes the case is more akin to mootness through happenstance than mootness through settlement), there’s nothing in there that suggests it should have taken 55 days to produce. Again, it suggests that Citizens United opinions may be taking a lot of the Court’s energies.
In a similar vein, I wonder what the back-story is on Union Pacific. To be sure, Justice Ginsburg’s opinion is 17 pages long, but she is among the fastest and most hardworking of the Justices (as noted in a semi-humorous and largely factual Green Bag piece published back during the 20th Century), and the opinion was unanimous. The Court wound up not resolving the question presented and instead disposed of the case based on an alternative ground. I wonder whether the initial draft of the opinion addressed the question presented, and the opinion assumed its present shape only after memo traffic. Or I suppose it might be Citizens United.
That represents the last of my baseless speculation on this topic. We now return you to your regularly scheduled program.
UPDATE: One of the commenters suggested that the other Justices may have been holding off so that Justice Sotomayor, the new Justice, could be first to announce an opinion. Perhaps, but I’m aware of no established tradition of doing that, and the Court hasn’t extended that courtesy to the last three Justices to join the Court before the beginning of a new Term. Chief Justice Roberts, Justice Breyer, and Justice Ginsburg each issued their first opinions between three weeks and four months after their first Term’s initial hand-down day (Roberts: 12/7/05 vs. 11/8/05 for JPS and SGB; Breyer: 1/18/95 vs. 11/1/94 for SOC; Ginsburg, 12/13/93 vs. 11/9/93 for SOC (2 opinions)–see what I mean that Justice Ginsburg is normally speedy?). While Justice Scalia had an opinion out on the first hand-down day of his first Term, that was not so much because the other Justices went slow for him as he went fast. Justice O’Connor and he both announced opinions on 11/4/86, but O’Connor’s was argued 10/7, and Scalia’s was argued 10/14. I don’t know if this is related to the speed with which he did the opinion, but the Reporter of Decisions later issued adhesive corrected sheets for all but one page of that decision.
OK, now that really will be my last word on this subject.
David H. says:
I think it’s interesting to note SCOTUS has yet to hand down anything that’s not unanimous. There were quite a lot of per curiams handed down in November, and the first four published opinions might as well be per curiam. I think perhaps that the Court is getting “the easy ones” out of the way, and taking their times sending memos back and forth on the cases that are in negotiation. And we have no idea what kind of wrench Sotomayor (never a quiet one) is throwing into their opinion drafting process.
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December 8, 2009, 6:15 pmVasco says:
Michigan v. Fisher wasn’t unanimous.
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December 8, 2009, 6:26 pmA. says:
It’s really unfortunate that Jim Lindgren feels the need to repost other blogs’ content without contributing almost anything of his own (rather than just linking, like a normal blogger), feels the need to post giant treatises without using cuts (thereby pushing all the other conspirators way down, out of sight), and feels it reasonable to top it all off by closing comments, all for many posts in a row. What a terrible blogger he is, and what a disservice he is doing to the VC.
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December 8, 2009, 7:05 pmShelby says:
Because Jim Lindgren’s 5:43 post has blocked comments, I post here:
My kingdom for a “Click for More” button
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December 8, 2009, 8:41 pmmicdeniro says:
I’ll join in re Lindgren’s 5:43 post.
I quit science (I refer to myself as a recovering isotopist) and became a lawyer partly so I wouldn’t have to read the scientific literature anymore.
Now for something completely different, I thought.
It looks like Nature (the journal) has broken out on the VC.
More incorporation doctrine, less incorporation of anti-doctrinaire science from other blogs.
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December 8, 2009, 9:20 pmGuest poster says:
There’s a fairly obvious reason they would have waited this long — in order to let Justice Sotomayor announce the first opinion of the Term. It’s not a coincidence that three other, shorter opinions came out on the same day. Mohawk might have taken longer than the others, given that (a) she is new; (b) there is a separate opinion from Justice Thomas; and (c) it is a little longer than the other opinions.
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December 8, 2009, 9:47 pmSyd Henderson says:
Union Pacific Railroad v. Brotherhood of Locomotive Engineers : a case 120 years in the making!
Well, okay, but doesn’t it sound like it should be a case from the 19th Century?
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December 9, 2009, 12:39 amSyd Henderson says:
And I also petition the Court for a “click for more” button. Or an exclude option.
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December 9, 2009, 12:41 amRodger Lodger says:
I thought — but I wouldn’t swear to it in court — that the maiden opinion of a new justice is unanimous. Yet we have J. Thomas’s concurrence in J. Sotomayor’s first. Yes, I’ll go there: evidence of a personal rivalry/dislike emanating from Thomas, J.? This speculation is more valuable than that surrounding a certain golfer whose name escapes me.
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