Hiding the Ball
posted by David Orentlicher
SCOTUSblog reported that 70,000 people were logged onto its live blog yesterday morning as the Supreme Court announced its decisions. Most were likely watching to see if the Affordable Care Act opinions would come down. That’s a lot of unproductive time that could easily have been avoided if the Court had released a list of decisions in advance, say by 5 pm on Wednesday, or even by 9 am yesterday.
Of course, the Court hides the ball in other ways, such as by forbidding live broadcasts when it hears oral arguments and issues its decisions or when it writes per curiam opinions. The justices might learn from the practices of their lower court colleagues. For example, when I clerked for Judge Alvin Rubin on the 5th Circuit, he would compose a list of questions that the clerk’s office then sent to counsel so they could better prepare for oral argument and give their best shot at responding to Rubin’s concerns.
The public would be well served if the Supreme Court brought more transparency to its activities.
June 22, 2012 at 8:27 am
Posted in: Supreme Court
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Responses (6)
Andrew Strom - June 22, 2012 at 8:59 am
The idea of judges providing questions in advance is such a good one. If the goal is to reach the most just decision, there is little to be gained by surprising counsel at oral argument. Also, I have often been struck by how appellate judges are eager to know some background facts that may not be in the record (or may be buried in the record). Sometimes counsel know the answers off the top of their heads, but not always.
Jack - June 22, 2012 at 9:49 am
Division 2 of the Arizona Court of Appeals (and one other court that I can’t rememnber) issues tentative opinions drafted by one judge on the panel weeks before argument so that counsel know and can address what the court is thinking. I understand they do not always follow the tentative opinion/
Joe - June 22, 2012 at 10:04 am
I checked over at Oyez.com yesterday, looking at the Pacifica ruling that Ginsburg announced she would overturn. There is audio of the opinion announcement by Stevens, an excellent summary of the various permutations of a split bench.
It would be useful if such opinion announcements were put on its website as is the case with opinions. If they are going to spend time so a few people in court will hear the announcements, which can take about five minutes or more in some cases, it is substantive enough to share with the rest of us before Oyez gets its hands on it months later.
TJ - June 22, 2012 at 12:03 pm
Most of the time such suggestions make sense, but there is a counter-argument, which is that it is a slippery slope. If the court provides an indication on the afternoon before, that will just create a lot of demand that it release the result (if not the opinion) at the same time, since the result will be known. After all, that too would serve transparency.
The end of this slippery slope is a demand to release the conference vote as soon as it is taken. Heck, the demand might be that we televise the conference vote. That, too, would serve transparency and save us a lot of time. One can see why the justices do not particularly wish to encourage this sentiment.
Orin Kerr - June 22, 2012 at 1:12 pm
I’m not sure I see the harm. Logging into the liveblog is pretty fun, and it takes about 15 minutes to watch the entire thing. No one makes you do it: It’s just something you do if you’re really interested, like checking sports scores to know the latest. That doesn’t seem so terrible. And on the flip side, if you knew the decision was going to be handed down the next day and you’re someone who is very intensely interested in tbe answer, knowing that it will definitely come down the next day may cause you to lose a night’s sleep, which is a harm generally avoided when you don’t know when a decision is coming down. I don’t know how to weigh these different costs and benefits, but it’s not clear to me that there is a problem.
As for announcing questions beforehand, I think there’s an important difference between circuit courts and Supreme Courts. Advocates at the circuit court level are often unprepared, so a judge might submit questions to make sure counsel has an answer. Advocates at the Supreme Court are generally much better and much more prepared; it’s relatively rare for a Justice to ask a question that an advocate isn’t already ready for. I suppose that advocates could spend less time prepping for Supreme Court arguments if they knew some of the questions beforehand, but I don’t think that’s a major problem.
Orin Kerr - June 22, 2012 at 1:13 pm
Correction: Make that “lose a good night’s sleep.”
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