Thanks for reading the Marble Palace Blog, which I hope will inform and surprise you about the Supreme Court of the United States. My name is Tony Mauro. I have covered the Supreme Court since 1979 and for the ALM since 2000. I took my semi-retirement in 2019, but I am still fascinated by the High Court. I will be happy to receive advice or suggestions for topics to write. You can reach me at [email protected].
Supreme Court justices have announced their opinions from the bench “since the first Supreme Court ruling in 1792,” according to Bernard Schwartz, the legendary late Supreme Court scholar.
I wrote a law review article in 2013 on the long history of opinion pieces and came to the conclusion that “since the inception of the court, judges have treated opinion pieces as an important part. of their public roles ”. And they are particularly significant when judges announce their dissent from the bench.
The tradition of opinion announcements fell out of necessity when the pandemic struck last year. Judges worked from home and the public was not allowed to enter the court, so a court speech was obsolete. Instead, the opinions were posted on the court’s website, without the traditional oral announcements from the bench judges.
But the judges returned to the courtroom when the current term began on October 4, and with them came socially distanced lawyers involved in cases, accredited journalists, clerics and a few others. Thus, in theory, judges could have taken up the tradition and seized the judiciary to announce summaries of opinions when their first opinions of the mandate were ready for delivery.
This first opinion of the term, Mississippi v. Tennessee, arrived on Nov. 22, tagged by the court as “notice day,” a relatively new category on the court’s website calendar. But alas, the judges did not take the bench, including Chief Justice John Roberts Jr., who wrote the opinion. It was posted online at 10 a.m., when Roberts would normally have announced the opinion of the judiciary.
This new arrangement was quickly noticed.
Longtime NPR Supreme Court reporter Nina Totenberg expressed concern on Twitter. “Is #SCOTUS abandoning another tradition that dates back centuries and offers a bit of transparency?” The ct will post notices Monday, online, without the bench’s usual announcement. It was understandable when they weren’t seated, but not now, when they are in person.
An anonymous Totenberg Twitter follower offered a hypothesis as to why the opinion ads could have been shut down: “Kagan wrote a dissent that’s on fire and they don’t want her reading on the bench? “
That’s an unlikely reason for the court to end opinion announcements, but the comment makes a point. Oral dissent from the judiciary is a class in itself, occurring only a few times a year, but they are powerful due to their rarity. “Oral dissent identifies some of the most deeply held minority opinions of Supreme Court justices,” according to the full tally of Supreme Court oral dissent gathered in the Law Library Journal. It seems likely that present-day dissenters such as Judges Elena Kagan and Sonia Sotomayor would like vocal dissent to persist.
On the other hand, some judges do not like oral announcements at all, whether spoken by the majority author or by dissenters. Judges are wary of opinion ads because the public might view them as the main attraction, not the full opinion. This is why, I am told, the oral audio of the opinion pieces were released to the public with delay, until the pandemic.
The brevity of the announcements also worries the judges because they can be oversimplified or transformed into a form of “spin control” by a court.
In the 1940s, Judge Felix Frankfurter once improvised an opinion ad and gave different justifications for the opinion, according to Judge William O. Douglas in his memoir. At the end of the session, Judge Harlan Fiske Stone told Frankfurter: “By God, Felix, if you had put everything in opinion, I never in my life would have accepted it.