202. The Timing of Rulings in Argued Cases
Except in highly unusual circumstances or at the very end of each June, the Supreme Court's internal norms make it hard to be confident about which decisions in argued cases will be handed down when.
Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to lawyers and non-lawyers alike. I’m grateful to all of you for your continued support, and I hope that you’ll consider sharing some of what we’re doing with your networks.
Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:
Friday gave us the Court’s first decision of the term in an argued case—the 5-4 ruling in Bowe v. United States, a technical but important dispute about the ability of federal prisoners to bring certain second-or-successive post-conviction challenges to their conviction or sentence (and the ability of the Supreme Court to review such cases).1 That the Court only handed down Bowe also disappointed a lot of folks (albeit few close Court watchers) who had assumed—and predicted—that we were definitely getting the tariffs decision on Friday. Justice Sotomayor even had a little bit of fun on that subject from the bench—prefacing her reading of her majority opinion in Bowe by looking out at the courtroom (with the Solicitor General and his deputies in attendance) and remarking: “Seeing who’s here, it’s not the case you thought.”
When we launched this newsletter, one of my goals was to provide periodic explainers on how the Court’s internal processes work (or, at least, how we think they work). Given the confusion over not getting the tariffs ruling on Friday, I thought now would be a good opportunity to return to that theme—and to tackle what we know about the timing of decisions from oral argument to hand-down. To make a long story short(er), it certainly was possible that the tariffs ruling would come down Friday—just as it’s possible it’ll come this Wednesday, when the Court has announced it will also hand down one or more rulings in argued cases. But as is true about almost anything relating to when specific Supreme Court decisions will come down, it was (and is) by no means a given.
Before turning to that, let’s start with the news.
On the Docket
The Merits Docket
It would probably take a whole issue of the newsletter unto itself to explain Bowe (and maybe I’ll try in a future installment).2 In an oversimplified nutshell, the Court had agreed to decide two questions about how limits on second-or-successive3 post-conviction claims by state prisoners that Congress adopted in 1996 also apply to such claims by federal prisoners—in a context in which the best that can be said of the statutory language is that it’s … internally inconsistent.4 For a 5-4 majority (the three Democratic appointees, the Chief Justice, and Justice Kavanaugh), Justice Sotomayor held that the statutory limit on the Supreme Court’s own jurisdiction in second-or-successive cases brought by state prisoners did not also apply to second-or-successive claims by federal prisoners. And for a 5-3 majority (with Justice Barrett not joining either the majority or Justice Gorsuch’s dissent on this point), the Court also held inapplicable to federal prisoners the requirement that courts dismiss any second-or-successive claim that was litigated in a prior post-conviction suit.5 The upshot is that it will be marginally easier for federal prisoners to try to re-litigate claims they’ve lost in prior post-conviction proceedings;6 and it will be much easier for the Supreme Court to review lower-court rulings in such cases.
Given how the argument went, I’m not especially surprised by the result or the vote; the real surprise, in my view, is that an ideologically divided 5-4 split (with a separate concurrence from Justice Jackson) came out so quickly—and first. More on that below.
Late Friday afternoon, the Court added another five cases to its merits docket (two of which are consolidated), the headline of which is unquestionably the consolidated cases, which raise whether the FCC can assess and enforce monetary penalties without guaranteeing the defendant a right to a jury trial. Those cases are a sequel to the Court’s important (if analytically and doctrinally vexing) 2024 ruling in SEC v. Jarkesy, which held that the Seventh Amendment creates a right to a jury trial in at least some SEC enforcement proceedings. The Court also agreed to take up an important case about whether the Alien Tort Statute (which gives federal courts jurisdiction over certain claims for violations of international human rights law) authorizes the imposition of liability on the ground that a defendant aided and abetted the underlying human rights violation (rather than bears direct responsibility for it). And it also granted the Trump administration’s petition in a quietly important immigration case about the circumstances in which holders of green cards who have been convicted of crimes can be removed from the country. It’s possible that some or all of these cases will be hustled onto the April argument calendar, but it’s also possible that these are among the first cases the Court will hear next term.
The only other news on the merits docket came Thursday—when the Clerk of the Court, in a letter to the parties, announced that Justice Alito is recusing from a case in which the Court is set to hear argument later today. Specifically, Alito owns stock in ConocoPhillips, which is the parent corporation of Burlington Resources Oil and Gas Company—one of the defendants/petitioners in Chevron USA v. Plaquemines Parish. Beyond the broader debate over whether the justices should own individual stocks at all (this whole mess is a good example of why the answer ought to be “no”), there’s also the sketchiness of how the defendants apparently tried to preserve Alito’s participation—by “voluntarily dismissing” Burlington from “the case” prior to the Court’s grant of certiorari, even though it remains a party in the lower courts. Once subsequent briefing made that distinction clearer, Alito correctly (if somewhat belatedly) decided to recuse. Good for him; bad that this kind of behavior by parties is possible in the first place.
The Emergency Docket
Speaking of Justice Alito, the only full Court ruling on an emergency application last week came on Wednesday, when the justices vacated Justice Alito’s administrative stay (and denied a stay pending appeal) in a long-running labor dispute between the company that owns the Pittsburgh Post-Gazette and the union representing many of its employees (which I summarized back in December). The result is to allow for immediate enforcement against the Post-Gazette of an adverse NLRB order issued early last year. There were no public dissents.
Turning to this week, although there are a handful of emergency applications pending before the Court, none (other than the two that remain deferred) are from the Trump administration. That means we’re now in the longest stretch of the second Trump administration during which the Justice Department hasn’t filed a new emergency application; the last one (number 32) was filed on December 5. Something tells me this trend won’t last much longer.
The Week Ahead
The Court has quite a lot on tap for the week ahead. We expect a full Order List at 9:30 ET—the first since December 15. The January argument session then begins at 10 ET, and includes the transgender athlete cases tomorrow and the Trump v. Cook emergency application argument next Wednesday. And, as noted above, the Court has already announced that, before this Wednesday’s argument, it “may” (i.e., will) hand down one or more decisions in argued cases. All of which is to say, expect at least some news out of the Court over the next three days.
Miscellaneous
Finally, although neither of these are Court-related, I hope you’ll indulge two personal notes.
The first is to flag that my superstar literary agent, Alia Hanna Habib, has a fantastic book of her own coming out next Tuesday—about writing and publishing non-fiction books, and titled “Take It from Me: An Agent’s Guide to Building a Nonfiction Writing Career from Scratch.” I was incredibly lucky to be connected (by my sister-in-law, Doree Shafrir) to Alia, and luckier still that Alia agreed to work with me on The Shadow Docket. As I wrote in the acknowledgments, “From the beginning, Alia understood what I hoped to accomplish through this book, and her timely feedback on various iterations of the proposal, her guidance about the publishing process, and the efforts that she and her team … made behind the scenes at the Gernert Company were instrumental in getting this book off the ground.” Indeed, without Alia, The Shadow Docket just would never have happened. Now, Alia’s taking her wisdom and experience and sharing it with the world (her newsletter, “Delivery and Acceptance” is a good preview.) My own view is that the book is much more than a “how-to” guide; it’s a fantastic read for anyone who’s curious about how the non-fiction publishing world works writ large. If that’s you, I hope you’ll consider checking it out!
Second, and closer to home, my seven-year-old daughter, Sydney, and her Girl Scout Troop are in the midst of cookie-selling season—an operation that, unlike what was true centuries ago in my youth, has now gone largely online (she designed the avatar):
If you have the wherewithal to support her troop (and buy some cookies—especially Tagalongs), I hope that you’ll click here to listen to Sydney’s audio pitch and consider placing an order!
The One First “Long Read”:
The Time Chart of the Justices’ … Rulings
Since the late 1940s, the Harvard Law Review’s annual Supreme Court issue has led with a “Foreword”—a lengthy scholarly essay about the Court and its work written by a leading scholar selected by that year’s editorial board.7 In recent decades, these essays have heavily focused on the Court’s substantive decisions and the doctrines emanating from them. But they at least derived from more holistic, institutional assessments of the Court published in the 1920s and 1930s by then-Professor Felix Frankfurter and various former students and colleagues. And one of the most Frankfurterian of the post-1949 Forewords was the 1958 Term entry (from Professor Henry Hart) titled “The Time Chart of the Justices.” In it, Hart tried as comprehensively as possible to account for how the justices spent their time—and what conclusions could be drawn from doing the math holistically (including Hart’s conclusion that the Court was taking and deciding too many cases—and that the quality of the justices’ work was declining as a result).
I mention Hart’s “Time Chart” Foreword because it’s been some time since folks thought (or, at least, wrote) about the Court in similar terms. But the public confusion surrounding the timing of the tariffs ruling seemed like an opportune moment to return to at least one piece of this conversation: the path from oral argument to the release of a ruling on the merits.
The basic outlines are well-enough known, and have largely been followed since the early twentieth century:8 each week that the Court hears arguments, the justices meet for at least one private Conference, at which they tentatively vote for particular results in each case that was argued. The senior justice in the majority (so, the Chief Justice unless he’s in dissent or not participating) then “assigns” the case to one of the justices in the majority (including, perhaps, himself) for purposes of preparing a majority opinion and delivering the judgment of the Court. There is also reason to believe, in at least some cases, that any dissenters may likewise organize at that point and assign the task of writing the “principal” dissent to a specific justice—but that can and does also happen later, including after a draft majority opinion has been circulated, and perhaps still later if the majority declines to make changes on which a justice insists as a condition of joining.
Everything that happpens from there is driven by norms and traditions, not rules—including norms of collegiality (there is a very rich political science literature about how those norms operate and interface). As you might imagine, much depends upon the stakes of the dispute; the complexities of the questions being decided; and the degree of agreement/disagreement across the Court. But so far as we know, there are no fixed limits on how many drafts can be exchanged; how many revisions can be made before opinions are filed; or how long this process can take. There just comes a point of diminishing returns—one that becomes sharper as the Court begins to approach the end of June, its entirely arbitrary but very firm internal deadline for releasing rulings in cases argued during that term.
What all of this means is that, in the typical case (more on atypical cases shortly), there are neither internal rules nor external exigencies driving the timing of the Court’s decisionmaking processes. A case argued the first day of the term in October can be decided quickly (which usually means December), or can go all the way to the end of June. What’s more likely to control the timing is how long the justice assigned to write the majority opinion takes to circulate a draft (as Bowe reflects, Justice Sotomayor appears to have replaced Justice Ginsburg as one of the Court’s fastest writers); how long it takes for justices to write separate concurrences/dissents; and how much back-and-forth there is before the opinions solidify into a form in which they’re ready to be released. In other words, a brief and uncontroversial unanimous opinion with no separate writing will usually come quickly; a messy, fractured decision with lots of separate writings that evolve as they go will take a lot longer. (This is also why I’m not a big fan of the Court’s April argument session—which leaves remarkably little time for those processes to play out.)
And except in late June, the Court usually waits to hand down a ruling that’s ready until one of its already scheduled public sessions (the Court adds days in June so that it can spread out the handing down of the last slew of rulings). Those regularly scheduled public sittings can include a non-argument session like last Friday’s, or a day on which the Court is already set to hold oral argument like this Wednesday. In other words, and again, except in late June, it’s highly unusual for the Court to take the bench to hand down decisions in argued cases on a day it wasn’t already set to take the bench. That’s why, when the Court announces a previously unscheduled public session to hand down decisions at any other time of the year, it invariably means something unusual is going on (like last January, when the late-breaking public session on January 17 was widely—and correctly—viewed as a sign that the TikTok ruling was coming).
So which cases get that kind of special consideration—and is the tariffs case one of them? The short answer is ¯\_(ツ)_/¯. TikTok was an obvious one; the Court took it up on an incredibly expedited basis, and everyone agreed that a decision was needed by January 19—the day on which the statute’s coercive provisions would go into effect. Another good example is a case from 2016, Welch v. United States, where time was of the essense because of the need to answer the question presented before a one-year statute of limitations for federal prisoners that was about to run out. In general, there appears to be a decent correlation between cases in which the Court schedules exceptionally expedited oral arguments (or has some kind of fixed back-end deadline) and those to which it gives special timing consideration for its decision both internally and in the mechanics of how it’s handed down. (For obvious reasons, Bush v. Gore also falls into this category.)
By that metric, the tariffs case … isn’t one of them. Yes, the Court expedited its consideration, but it did so at the parties’ joint request; and it did not put the cases on nearly as compressed a briefing and argument schedule as in, e.g., the TikTok case last term or the SB8 and OSHA and CMS vaccine mandate cases in OT2021. Nor is there a fixed deadline for a ruling; thanks to a stay issued by the Federal Circuit, the tariffs remain in effect at least until the Court rules. And finally, whatever the Court does in the tariffs case, it’s exceptionally hard to believe, given how the oral argument went, that we’re getting a short, unanimous opinion with no separate writings. All of that augurs in favor of the tariffs ruling taking a substantial amount of time before it would be ready—and that’s before accounting for everything else the Court has been dealing with in the interim.
The same can be said about the other major ruling some have suggested may be imminent—in the Louisiana redistricting cases. Not only were those cases not expedited; they were held over from last term. Here, too, there’s no formal deadline like in TikTok, even if Republicans are clamoring for a ruling that would open the door to re-drawing congressional district maps in time for the 2026 midterm cycle (it may already be too late for that). And my best guess from the argument is that there’s going to be quite a lengthy dissenting opinion from the Democratic appointees—one that would necessarily take some time to finalize.
Does this mean we’re not getting either the tariffs ruling or the redistricting cases (or both) on Wednesday? No! It’s certainly a bit strange that the Court announced, so soon after Friday’s opinion was handed down, that it would also hand down one or more rulings in argued cases this Wednesday. But that weirdness seems hard to tie to the tariffs or redistricting cases, specifically—versus the possibility that a second ruling was nearly ready to go Friday, and then got pulled back for a last-minute revision that’s now settled.
The elephant in the room is the possibility that a majority of the Court would move to release a decision before separate opinions, including dissents, were concluded. Again, there are no rules governing these mechanics of the Court’s decisionmaking process; if five (or more) justices were to agree to release a ruling even over the objections of their colleagues, they do (and probably should) have the raw power to do so. But such a move would be an exceptional breach of the Court’s internal protocols—one without a modern precedent, and that would become a massive story unto itself.9
To do so in the redistricting cases, for example, where the only possible urgency would be the desire to maximize Republicans’ partisan advantage in the 2026 midterms, would, in my view, be catastrophic from the perspective of public perception of the Court. If we get the tariffs ruling or the redistricting cases on Wednesday, I have to think it will be because they’re fully ready to go. And again, either or both are certainly possibilities. But it’s hard to conclude that either is more likely than any of the other 16 cases argued in October or November—the public interest notwithstanding.
Like everyone outside the Court, we’ll find out shortly after 10:00 ET this Wednesday.
SCOTUS Trivia: Justice Rutledge’s Non-Vote in Hirota
In October 2023, I wrote a lengthy post about the Supreme Court’s December 1948 decision in Hirota v. MacArthur, in which the Court held that it lacked jurisdiction to review challenges to the convictions and judgments of the Tokyo war crimes tribunal brought by 11 of the “Class A” defendants. The full story of the Hirota case is quite something—including a four-justice dissent from the order setting the case for expedited argument; Justice Black’s apparent insistence after argument that the brief, unsigned opinion handed down shortly thereafter deliberately fudge which of the two potential jurisdictional defects it was relying upon; and Justice Douglas’s promise to file a concurrence sometime thereafter—a promise he fulfilled more than six months later, deliberately waiting until the last day of the October 1948 Term.
But the footnote then, and the trivia today, is the curious non-vote of Justice Wiley Rutledge. At the time Hirota was decided, Rutledge (who had largely been responsible for persuading the Court to take the Hirota case up in the first place) announced that he was reserving his decision for a later date. But he died almost an entire year later without ever recording his vote, perhaps the only non-recusal “abstention” ever recorded in the U.S. Reports.
As I wrote in a 2007 article,
There is no indication in Justice Rutledge’s papers either why he was unable to reach a decision or whether he ever came closer to recording his vote. In a letter to Justice Douglas concerning a revision to the U.S. Reports to indicate that Rutledge died before announcing his vote, Walter Wyatt, the Court’s Reporter of Decisions, noted that he “discussed the matter with Mr. Justice Rutledge shortly after the Fourth of July last year [1949]; and he told me that he had not yet made up his mind how he would vote in this case.”
Some mysteries, it seems, are meant to be left unsolved.
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The Court had already handed down three unsigned (“per curiam”) opinions in cases that had not been argued—summary decisions at the certiorari stage.
I should note that I co-authored and signed a friend-of-the-Court brief on behalf of the petitioner in Bowe—arguing that an interpretation of the relevant statutes that foreclosed the Supreme Court’s power to hear Bowe’s appeal would raise grave constitutional questions. For formality’s sake, suffice it to say this post does not nececcesarily reflect the views of my co-counsel or the other signatories.
“Second-or-successive” is a generic descriptor for every post-conviction challenge to a conviction or sentence (like a habeas petition) by a state or federal prisoner that’s brought after they’ve filed their first.
In February 2024, I wrote about Bowe’s earlier attempt to get the Supreme Court to take up his case—through a highly unusual “original” writ of habeas corpus. That post has a bit more background on the statutory mess that led to this case (and others like it) in the first place.
There’s nothing odd about Justice Barrett joining only the jurisdictional portion of Justice Gorsuch’s dissent. It’s perfectly coherent to believe that the Court lacks jurisdiction, and to therefore express no view on the “merits” question the Court went on to answer (just like it’s perfectly coherent to believe that, because the majority held that there is jurisdiction, it’s also appropriate to weigh in on the merits even if you disagree).
One of the biggest constraints on post-conviction claims by federal prisoners, as opposed to state prisoners, is a practical one—the fact that they’re invariably brought in the same trial and appeals courts that produced (and affirmed) the original conviction and sentence. (State prisoners, in contrast, are asking federal courts to review state-court rulings.) Thus, formally relaxing the bar to relitigation of claims already presented still leaves prisoners in a position in which they have to persuade the same courts that the earlier rulings were mistaken.
According to Professor G. Edward White, the practice of circulating draft majority opinions internally became formalized no later than 1947—the same year that the U.S. Reports began to record every justice’s vote in cases decided through signed opinions.
The only recent examples of the Court handing down decisions before separate opinions were ready all involve emergency applications, not merits rulings in argued cases. I might be missing a more recent example, but the last instance I could find of the full Court handing down a post-argument merits ruling with separate opinions filed later was in 1959—when the justices writing separately clearly signed off on releasing the majority opinion first.
Thank you for highlighting the gamesmanship of lawyers and judges "in Chevron USA v. Plaquemines Parish" in which "the defendants apparently tried to preserve Alito’s participation—by 'voluntarily dismissing' Burlington from 'the case' prior to the Court’s grant of certiorari, even though it remains a party in the lower courts."
Too many lawyers and judges violate their oaths to fulfill their first and constant duty, which is to support our Constitution. Too many lawyers and judges have worked too long to use courts to subvert the primary founding principle of our Constitution and our nation. They pretend that what judges say and do is more important than the actual supreme law of the land.
In 1803, Chief Justice John Marshall and SCOTUS devoted their opinion to showing people how and why Article VI (the Supremacy Clause and the Oath Clause) established that “[t]he government of the United States has been emphatically termed a government of laws, and not of men.” Many lawyers and judges use many tricks and schemes (including so-called judicial doctrines) to undermine our Constitution and turn courts into instruments of the opposite--a government of mere men (judges) and not of laws. SCOTUS justices highlight that problem constantly with the shadow docket, the process of granting or denying cert., and even how they write their opinions these days to include flagrant falsehoods about our Constitution and our history in virtually, if not actually, every case pertaining to Trump or partisan gerrymandering.
I was a girl scout cookie mom many moons ago. Is the reason for online selling because it's easier, or is it a safety issue?
A court question: I watched Marc Elias' interview with Dahlia Lithwick. She said that SCOTUS is the branch with the power. For example, 1) SCOTUS gave Trump immunity, and 2) the reason Congress doesn't stand up more is because SCOTUS has taken away some of their power. She believes the court wants more power. Your thoughts?