The last three days of the Supreme Court saw seven important opinions being released, including those on Obamacare, same-sex marriage, the death penalty, environmental regulation, and redistricting. In previous years too, major opinions were released at the very end and one issue that has come up for discussion is whether the justices deliberately keep the high-profile rulings until the end of the term.
NPR’s Nina Totenberg, easily one of the best legal reporters around, discussed the way in which the court decides (which agrees largely with what I wrote earlier when I described the process) and what is happening behind the scenes. She said that the justices issue rulings when they are all satisfied that they are ready and they don’t deliberately try to keep us in suspense. She pointed out that earlier major rulings such as Roe v. Wade and Citizens United were issued in January.
You can listen to Totenberg.
She said that the justices go back and forth many times with multiple drafts, with the majority opinion usually being drafted first, after which the dissenting justices write their opinions based on the majority view, then the majority opinion is revised to address the dissents, then the dissents are revised, and so on. All this back and forth takes place in written form and not in person and can involve many, many drafts. She says the justices want to make sure they get every small detail down to the specific wording right, especially with high profile cases that will be carefully pored over, and that is what sometimes causes long delays with controversial cases. Usually the opinions are released to the press in the form of a bound booklet but Totenberg said that the same-sex opinion this year was not in the form of the usual bound booklet but just regular paper stapled together, suggesting that that opinion really went down to the wire.
She said that it is not often that justices change the position that they voted on the Friday immediately following oral arguments but it does happen. She recalled how justice Kennedy was initially part of the 5-4 majority in favor of allowing nonsectarian prayer at a public school graduation ceremony and was assigned to write the opinion. But he discovered that he just could not write the opinion and came to realize that it was because he could not justify it. So he switched his position and ended up writing the 5-4 opinion opposing the prayer. Something similar happened with a case that involved the issue of whether using devices to record TV programs (something that we now do routinely but was a huge new thing when videotapes first appeared) violated the copyright of the content producers.
The printed opinions are distributed simultaneously with the beginning of the reading of the opinion from the bench. This is why, if you watch the news on TV, you will see young people sprinting out of the court and onto the front steps. These are interns hired by the TV crews (presumably for speed) to get a copy of the opinion and rush it out to the reporters outside. This enables the news programs to get the word out a little faster than if they were inside the court and listening to the opinion being read.
The reporters usually have written multiple stories beforehand in anticipation of all possible outcomes so that they can get the story out quickly without reading the full opinion, once they think they know what the verdict is. This can lead to mistakes if the opinion’s opening section is not unequivocal. This is what happened back in 2012 when CNN erroneously reported that the court had declared Obamacare unconstitutional when it was actually the opposite, creating great confusion.
This system of interns running began a few years ago and looks a little strange, like the running of the bulls. From 1935 until 1971, the court used a system of pneumatic tubes to get the word out.
When the new Court building opened in 1935, it included a system of pneumatic tubes and compressed air. [Chief justice John] Roberts related that under this new protocol, “immediately before a Justice announced a decision in the Courtroom, the Clerk of the Court directed messengers to hand copies to a small group of journalists stationed in front of the bench. The journalists then dispatched the copies through the pneumatic tubes to their colleagues in the press booths one floor below, saving the messengers dozens of steps and precious minutes in communicating the news of Court actions.”
This system survived until 1971, Roberts noted.
Apparently this coming term might see the introduction of full-blown electronic system, so we may no longer see sprinting interns.