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I have written about bilateral judicial reform: how can Congress and the Supreme Court work together to reform the institution? In this new series for SCOTUSblog, I take a different approach: unilateral SCOTUS reform. What can the Supreme Court, acting alone, do better? These proposals are, in large part, a series of thought experiments. Some of them are admittedly off-the-wall and are unlikely to be adopted. Others may seem such common sense that they can be readily adopted. But all reconsider the status quo and what procedures are worth keeping and which should be changed.
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In the United States, the inferior federal courts hear cases year-round. Some insist that courts should be on duty 24/7/365, like a Denny’s. The Supreme Court’s schedule, on the other hand, is a complete and unfortunate anomaly. While justice delayed is justice denied, the nine justices still put all merits cases on hold between July and September.
A perusal of the court’s journals suggests this summer break was established by the start of the 20th century. Since 1917, the court’s term has started on the first Monday in October, and by practice, the court completes all of its business before the Fourth of July. Under the current format, the court will usually have no public meetings in July, August, or September. No merits cases are argued or decided over the summer. And it does not appear the court holds ad hoc conferences for emergency cases that arise during this time. All cert petitions filed over the summer pile up, and are considered at the “long conference” in late September, shortly before the start of the new term.
In 1983, John Roberts, then a White House lawyer, rightly poked fun at the court’s summer vacation. He quipped, “While some of the tales of woe emanating from the court are enough to bring tears to the eyes, it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” He added, “The generally accepted notion that the court can only hear roughly 150 cases each term gives the same sense of reassurance as the adjournment of the court in July, when we know that the Constitution is safe for the summer.” Perhaps that lengthy break could be justified when each of the nine justices was responsible for authoring nearly 20 opinions each term. Four decades later, with Roberts at the helm, the court decides about 60 cases. Yet, even with a workload of about six or seven majority opinions over a nine-month cycle, the justices still feel the need to take the summer off.
In my article Bilateral Judicial Reform, I proposed that Congress should mandate that the court hear arguments year-round. Specifically, Congress would require that the court schedule at least one public sitting for oral argument and one conference per calendar month. But this reform could also come from the court, or even from the chief justice acting alone. Although it is something of a black box how the court determines its schedule, every year the court releases a calendar indicating when there are argument days and when the court will hold private conferences. This process could slowly adjust to hosting more meetings.
The court could ease into change by scheduling a one day virtual meeting in July, in August, and in September. Virtual oral argument and conferences were held during the pandemic period. They were not ideal but were used effectively when the justices could not assemble in person. And the circuit courts of appeals routinely hold online arguments. Virtual sessions work well for my plan because the justices tend to scatter from July through September. Critically, the justices wouldn’t have to alter their summer travel plans. Whatever tensions and conflicts that arise during the term can still be mellowed out as the justices get out of Dodge.
On virtual meeting day, the morning session would be designated for oral argument in any pending emergency cases. The afternoon session would be reserved for a private conference to review pending cert petitions and emergency applications. If there are no urgent cases to be argued, the public argument session can be cancelled, and the justices would just review petitions. An orders list could be issued shortly after the conference. This approach would ensure that vital cases are fully vetted through arguments. Moreover, granting or denying petitions over the summer would eliminate the aforementioned “long conference,” in which hundreds of petitions are reviewed all at once at the end of September. Petitioners and respondents try to push their petition out of, or into, the long conference. My proposal would eliminate this gamesmanship. And my proposal is not entirely unprecedented. Indeed, just last week, the Supreme Court granted a cert petition in July, something that has happened sparingly over the years. It thus appears that the justices had some form of discussion about the case after the end of the term.
The more fundamental change would require breaking the mold that all opinions must be decided by the end of June. This practice makes sense from a logistical perspective: Any cases argued during a particular term should be decided during that term. But in the long run, this concern is myopic. Supreme Court opinions establish rules for “the ages.” Why should a landmark opinion argued in late April be rushed out by June? No one does their best work under time pressure. Rushed compromises can create unintended problems for generations unknown. An opinion should be released when it is ready and not accelerated to meet some artificial vacation deadline. This utilitarian calculus may offer the strongest justification to eliminate the summer recess: the justices will produce better opinions without the Fourth of July looming.
If the justices can agree that such a practice doesn’t actually serve the rule of law, the barriers to holding arguments in May through September largely fall away. A case argued in June could be decided in November. The calendar could still be set to ensure adequate time for rest and relaxation. Oral arguments in May and June would not be too burdensome, as the justices are already in town. Perhaps the justices could hold one sitting in mid-July, one sitting in mid-August, another sitting after Labor Day, and then start the new term, as they do now, on the first Monday in October. With public perception of the court on the decline, the Supreme Court can send a positive signal to the public without altering a single decision. The Supreme Court, like nearly everyone else in America, should work year-round to get the job done.
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