As a general matter, the Supreme Court hands down opinions when they are ready. That opinions came at such a slow pace this term perhaps reflects the fact that the Justices were taking more time to write fewer opinions. Moreover, it is unsurprising that the biggest cases of the year will often take the longest. The affirmative action cases, for example, were argued on Halloween but came down on the penultimate day of the term. It took some time to muster together 240 pages of opinions!
Still, there is some conventional wisdom that the Court staggers the release of the biggest cases on the final week of the term. The Chief Justice, the thinking goes, follows some sort of strategy that considers how the decisions will play in the public sphere. If this conventional wisdom is correct, I can think of a few possible strategies. First, the Chief Justice may try to mix up the conservative and liberal results on a given day so the Court seems balanced. Second, the Court may try to cram in all conservative decisions on one day, and all liberal decisions on another. Third, the Court can save the most conservative rulings for the final day of the term, which this year came before a long Fourth of July weekend. That way, they will be buried in the press. All of these strategies rely on contestable marketing strategies, which I don't think any on person (let alone the Chief Justice) can understand.
But is there actually a strategy? Let's look at the big cases for June 2023:
- Friday, June 30 – 303 Creative, Biden v. Nebraska
- Thursday, June 29 – Groff, SFFA v. Harvard
- Tuesday, June 27 – Moore v. Harper
- Thursday, June 15—Haaland v. Brackeen
- Thursday, June 8 – Allen v. Milligan
Arguably, the biggest "liberal" decisions–Brackeen and Milligan–came down on June 8 and 15. And Moore v. Harper, another quasi-liberal victory, was not saved for the final two days of the term. Until the morning of June 29, the Court was looking quite moderate this term. And then, bam! Affirmative action, compelled speech, and student loans in rapid succession. The Court took a final turn to the right on the way out the door before a long weekend. Why does this approach make strategic sense? If the Chief was trying to moderate things, he could have easily held Moore v. Harper for later in the week. Really, if the Chief was trying to manage the newscycle, he would have held onto Milligan till the final week to juxtapose Voting Rights with affirmative action. Everyone already forgot about the Alabama case by the end of June.
What about the timing of June 2022?
- Thursday, June 30 – WV v. EPA, Biden v. Texas
- Wednesday, June 29—Castro-Huerta
- Monday, June 27 – Kennedy v. Bremerton School District
- Friday, June 24 – Dobbs
- Thursday, June 23 – Bruen, Berger v. NAACP
- Tuesday, June 21 – Carson
What was the strategy here? Well, the Friday Dobbs drop took everyone by surprise, as that blockbuster would usually be saved for the end of the term. But there does not seem to be any deliberate left-right staggering here. Then again, Red June went solid to the right.
What about the timing of June/July 2021?
- Friday, July 2 – Brnovich
- Thursday, July 1 – AFP v. Bonta
- Friday, June 25 – TransUnion v. Ramirez
- Wednesday, June 23 – Collins v. Yellen, Cedar Point Nursery, Mahanoy
- Monday, June 21 – Arthrex
- Thursday, June 17 – Fulton, California v. Texas
I don't see any obvious strategy for the staggering of opinions. Maybe the conventional wisdom is wrong, and the Court simply releases opinions when they are ready.
In any event, the final day of the term allowed the Chief Justice to send a clear message to the public in Biden v. Nebraska.
It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. Reasonable minds may disagree with our analysis—in fact, at least three do. See post, p. ___ (KAGAN, J., dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.
With his final words before summer break, the Chief Justice did what he did best–defend the Supreme Court.
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