Life at SCOTUS After Arguments: Now It Gets Intense

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By Kimberly Strawbridge Robinson

April 27 — This term's oral arguments at the U.S. Supreme Court wrapped up April 27.

But with only two months of the nine-month term remaining, more than half of the court's argued cases—including many of the most high-profile ones—are still undecided.

This “is undoubtedly the most intense period of the year for Justices and law clerks alike,”Kannon Shanmugam, former clerk to Justice Antonin Scalia and now head of Williams & Connolly LLP’s Supreme Court and appellate litigation practice, Washington, told Bloomberg BNA April 22.

37 Cases Remaining

Each term, the court has seven oral argument sessions.

During these 2-week sessions, the court typically hears two cases every Monday, Tuesday and Wednesday.

This term, the Supreme Court heard 69 arguments, of which 37 remain outstanding.

Opinions Starting to Fly

“In one sense, without oral arguments, the day-to-day life of the Court is quieter,” Shanmugam said.

Without oral arguments, the justices don't need to prepare for new cases, Jay Wexler, former clerk to Justice Ruth Bader Ginsburg and now professor at Boston University School of Law, Boston, told Bloomberg BNA in an April 23 email.

Therefore, the justices will be “focused primarily on getting the rest of the opinions out by the end of June,” Wexler said.

But because there are so many opinions to get out, it's really the most intense period, Shanmugam said.

“Particularly for cases that were just argued at the end of April, the Court is operating on a very tight timeline,” Shanmugam said. “As the end of the term approaches, draft opinions start to fly around furiously,” he added.

‘Pretty Remarkable.'

Moreover, the end of the term is typically when the court hands down its most controversial and highest profile decisions.

This term, there are several outstanding cases that fit that bill.

The justices still have on their plate:

  •  Whether a Texas university's affirmative action program is constitutional in Fisher v. Univ. of Texas at Austin, U.S., 14-981, argued 12/9/15;
  •  Whether Texas's abortion regulations are unduly burdensome in Whole Woman's Health v. Hellerstedt, U.S., No. 15-274, argued 3/2/16 (84 U.S.L.W. 1253, 3/3/16);
  •  If Puerto Rico can address its debt crisis or if it must rely on Congress to do so in Puerto Rico v. Franklin Calif. Tax-Free Tr., U.S., No. 15-233, argued 3/22/16 (84 U.S.L.W. 1394, 3/24/16);
  •  Whether the federal government must exempt religious nonprofit organizations from the Affordable Care Act's “contraceptive mandate” in Zubik v. Burwell, U.S., No. 14-1418, argued 3/23/16 (84 U.S.L.W. 1394, 3/24/16);
  •  If President Obama has the authority to defer deportation and allow temporary work authorization for more than four million immigrants who entered the country illegally in United States v. Texas, U.S., No. 15-674, argued 4/18/16 (84 U.S.L.W. 1557, 4/21/16); and
  •  Whether former Virginia Governor Bob McDonnell's honest services fraud conviction will stand in McDonnell v. United States, U.S., No. 15-474, argued 4/27/16 (see related story).

 

“It’s pretty remarkable, if you think about it,” Wexler said. The court “is always able to get through everything it needs to get through by the beginning of summer so they can start the next term anew in October (with the occasional exception of a case reset for argument, or something like that),” he said.

Extra Work

This term that herculean task is complicated by the vacancy left by Scalia.

The justices will likely have to put in additional work to come up with compromises that avoid 4-4 ties, Wexler said.

On top of that each justice will probably have to write extra opinions that they had not foreseen, he said.

That includes not just majority opinions, but possibly separate concurrences and dissents too, Wexler added.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com