85. Opinion Announcements (and Why They Should Be Live-Streamed)

Justice Sotomayor's oral dissent in the bump stocks case highlights why the Supreme Court should allow those who can't be in the courtroom to hear the justices' hand-down statements.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday, 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 work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

This week’s “Long Read” was prompted by the Supreme Court’s decision on Friday in the “bump stocks” case, Garland v. Cargill—and, in particular, Justice Sotomayor’s decision to take the unusual step of reading parts of her dissenting opinion orally from the bench. Those who were physically present in the courtroom (or in one of the few places in the building into which live courtroom audio is piped) got to hear it. The rest of us won’t until the audio for the entire term is released—which won’t be for months. It’s a reminder that, even as the Court has moved toward full live-streaming of its oral arguments, it’s still not live-streaming hand-down announcements. And it’s a good example of why the Court should.

But first, the (other) news.

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On the Docket

After a relatively modest Order List (the highlight of which was grants of certiorari in two non-major cases), the biggest news out of the Court last week came in the six decisions that the justices handed down from the bench on Thursday and Friday.

Thursday brought three significant rulings, but not, as it turned out, especially divisive ones:

1. The first, solely because of the seniority of the justice who wrote it (or lack thereof), was Justice Kavanaugh’s opinion for a unanimous Court in the mifepristone cases—holding, as many of us had predicted for quite some time, that the plaintiffs did not have standing to challenge various actions by the FDA respecting the approval and prescribing of one of the two drugs used in the most common (and safest) non-surgical way to terminate a pregnancy. Given that the majority opinion does a faithful (indeed, an especially coherent) job of tying together the Court’s standing jurisprudence, there isn’t much more to say—other than that none of this would’ve been necessary if the Fifth Circuit either (1) faithfully applied Article III standing rules itself; or (2) had properly read the tea leaves last April when the Supreme Court issued the stay that the court of appeals had refused to. Sigh.

2. Thursday’s second opinion was interesting less for the result than for the debate amongst the justices in the majority. It’s not a big surprise that the Court unanimously upheld the U.S. Patent & Trademark Office’s rejection of the “Trump too small” trademark against a First Amendment challenge. But whereas Justice Thomas’s opinion analyzed the historical “tradition” of the First Amendment in a similar (and similarly stilted) way as his majority opinion in the Bruen Second Amendment case two years ago, he wasn’t able to hold a majority for each of his analytical steps. And Justice Barrett’s more … forgiving … approach, outlined in a separate concurrence, was joined by Justices Kagan and Sotomayor (much like Kagan’s methodology-heavy concurrence in the CFPB case, which Barrett and Kavanaugh joined). In other words, the real takeaway from Vidal v. Elster is that there appears to a middle position emerging when it comes to how to do “history and tradition” analysis in constitutional interpretation—led by Justices Barrett and Kagan. We’ll have to see if and how that plays out over the next two weeks (and beyond).

3. Finally, the Court’s 8-1 ruling in the Starbucks case was also not especially surprising—holding that the traditional equitable standard for injunctive relief also applies to injunctions under a more specific provision of the National Labor Relations Act, which will, among other things, make it somewhat more difficult for workers to block anti-unionization efforts or other allegedly unfair labor practices by their employers. Justice Jackson’s partial concurrence/partial dissent seems quite persuasive to me in its discussion of how the purpose of the NLRA ought to inform the scope of a court’s equitable discretion to enforce that statute. The problem (for all of us, I’d argue) is that the Court has long since purported to turn a cold shoulder to such considerations in statutory cases.

Each of Friday’s three rulings included more of the divisions we’ve been expecting.

1. In U.S. Trustee v. John Q. Hammons Fall 2006 LLC, Justice Jackson held that the proper remedy for a statute that unconstitutionally apportioned different fees in certain bankruptcy cases depending upon where they were filed (in violation of the Uniformity Clause of Article I), is prospective parity, and not refunds to those who have already received unconstitutional fees. This may not sound like an especially interesting ruling, but two features stand out: First, in addition to the three Democratic appointees, the majority included Chief Justice Roberts, Justice Kavanaugh, and … Justice Alito. I honestly can’t remember the last time Justice Alito was in the majority in a case in which three of his fellow Republican appointees were in dissent. It’s nice to see. Second, and speaking of the dissent, Justice Gorsuch used his opinion to take several shots at the justices in the majority for denying a remedy to victims of a constitutional violation—even though the Democratic appointees, at least, have often urged the Court to ensure that constitutional violations don’t go un-redressed. Leaving aside the rather significant difference between the “constitutional” violation in this case (non-uniform bankruptcy fees) and cases in which the Court has foreclosed any remedy for clearly established violations of constitutional rights, it seems odd that Justice Gorsuch failed to account for his own votes in those cases (one of which, in full disclosure, I argued)—which have uniformly been against relief.

2. The Court’s second decision, in Campos-Chavez v. Garland, resolved a circuit split on a technical but important issue relating to notice of immigration hearings in favor of the Fifth Circuit. Writing for a 5-4 majority, Justice Alito held that, when a non-citizen’s initial “Notice to Appear” at a removal hearing does not tell that person when and where the hearing is, but a subsequent notice does, the non-citizen cannot object to a removal order entered at the hearing if he was not present. In other words, so long as the government sent any information from which the immigrant could have figured out when and where his removal hearing was to take place, it doesn’t matter that the actual hearing notice (which, by statute, is supposed to have that information) lacked it. Justice Jackson’s dissent was joined not just by Justices Sotomayor and Kagan, but also by Justice Gorsuch.

3. Finally, the ruling that generated the biggest headlines was the Court’s 6-3 ruling in Garland v. Cargill, holding that the Trump-era federal ban on “bump stocks,” adopted after and in response to the Las Vegas concert shooting in 2017, exceeded the Bureau of Alcohol, Tobacco, and Firearms’ authority to regulate “machineguns” under the National Firearms Act. There is a lot to say about this case, some of which I’ve said already, and some of which I’ll save for sometime this summer. For now, I’ll just note the odd role of the Second Amendment here: It’s not a constitutional case, and yet it’s difficult to believe that the five justices in the majority, all of whom claim to be “textualists,” would have made the same moves that Justice Thomas’s majority opinion makes if the case were about something other than guns. (Justice Sotomayor’s dissent, in one especially poignant passage, quotes opinions from each of the justices in the majority taking approaches in other contexts that seem to support her reading of the text.) And in what may be a portent of things to come, in a decision about a federal agency’s interpretation of a statute, there was nary a citation to (or discussion of) Chevron.

With those six decisions, we still have 22ish to go (plus the ozone pollution emergency applications). As of right now, the only day this week when the Court has announced it will hand down decisions is Thursday (and Wednesday is a federal holiday). I suspect we’ll hear, later today or tomorrow, that Friday will also be a hand-down day. But even then, that will leave the Court with quite a lot of work to do heading into what is supposed to be the last week before its summer recess. I’d still say it’s better than even that the Court finds a way to get all of its rulings out by June 28, but only by compressing a lot of major decisions into a very short amount of time.

Finally, we expect a regular Order List this morning at 9:30 ET. John Elwood’s “Relist Watch” identifies some intriguing potential candidates for certiorari, but unless the Court grants all of them, we’re still looking at a Court that will be struggling to fill its November and December argument calendars.

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The One First “Long Read”: The Mechanics of Hand-Down Announcements

Given that we’re in the midst of hand-down season, I thought it might be useful to briefly recount the typical protocol, and then dwell a bit on the one respect in which the hand-down in Cargill was unusual.

When the justices take the bench on hand-down days, the Chief Justice calls the Court to order, dispatches with any other business, and then announces who has the first decision of the Court and turns the floor over to them. Because hand-downs come in reverse order of seniority, that means the Chief Justice seldom calls upon himself first. In a tradition that goes all the way back to the Court’s early years, the justice who authored the majority opinion delivers a version of that opinion (but seldom the whole thing) orally.¹ The typical case ends there. But in unusual cases, justices will also read their dissents from the bench (and, even more unusually, their concurrences).

There’s a lot to say about the history, practice, and purpose of reading dissents from the bench (and there’s some very good scholarship both describing and quantifying the practice and taking a more philosophical look at the purposes and efficacy of such sporadic interventions). I’m a big fan of the late Harvard Law Professor Lani Guinier’s Foreword to the Harvard Law Review’s 2007 Term Supreme Court issue, “Demosprudence Through Dissent,” which, among other things, highlights some of the most important virtues. Critically, it’s not just an opportunity for the dissenting justices to underscore the impact of their opinion; sometimes, it’s an opportunity to go beyond the written words.

One especially memorable episode, for instance, came during the very Term Guinier was reviewing. At the end of his oral dissent from the bench in a case in which a 5-4 majority (with Justice Alito just having replaced Justice O’Connor) held that public schools could not use race as a tiebreaker in school assignment policies, Justice Breyer quipped that “It is not often in the law that so few have quickly changed so much.” Yet this widely quoted line did not actually appear in Breyer’s written dissent; he said it, with more than a little emotion, from the bench. As much as Breyer intended that line for his colleagues and the bar, his audience, as Guinier explained, was really the public—almost none of whom got to hear him say it.

Periodic dissents from the bench have remained a staple of the Supreme Court’s routine ever since—except between March 2020 and June 2022. The first 15 months can be chalked up to the justices not being on the bench at all because of COVID. But even after the justices returned to the bench for arguments at the beginning of the October 2021 Term (before a courtroom closed to the public), hand-downs still came remotely. There was thus no opportunity, in June 2022, for Justice Kagan to read from her dissent in West Virginia v. EPA; or for Justice Breyer to read from his dissent in Bruen; or for any of the Democratic appointees to read from their joint dissent in Dobbs.

And yet, even after the Court agreed to continue live-streaming oral arguments after the Court fully re-opened to the public in October 2022, and even after the Court returned to the bench for hand-downs during the October 2022 Term, there has been no similar move to live-stream the opinion hand-downs. The result is that, when Justice Sotomayor read her dissent in Cargill from the bench on Friday, the only people who could hear it were those physically at the Supreme Court. Audio of Friday’s session will eventually be available to the public (so you can now listen to Breyer’s oral dissent in Parents Involved), but if history is any guide, not until October, at the earliest.

To be sure, until May 2020, we had never had live audio access to the Supreme Court. For the exceptionally newsworthy cases, the Court’s early-2000s concession was same-day audio. And so complaining about a lack of access to live hand-down audio, compared to live audio of everything else the Court did, might have seemed a bit of a stretch. But it seems to me that, once the Court adopted the technological capacity to provide live-streaming of oral arguments, and especially once, after COVID, it committed to full live-streaming of every argument, the case for not live-streaming hand-downs has evaporated.

After all, if the concern is about live audio that the justices can’t control, that’s actually less of an issue for hand-downs (when only the justices get to speak) than it is for oral arguments. If the concern is that the media will use the justices’ voices out of context, that hasn’t manifested at all in the argument context (the only ugly example of which I’m aware is manipulation of an advocate’s audio). And if the concern is that the justices might say something that goes beyond what’s written in the four corners of their opinion, well, so what? That’s even more true during oral argument. Breyer’s line from Parents Involved may not be part of his dissent, but it’s still news worthy of reporting that he said it. Finally, insofar as the concern is less about dissents, and more about a justice saying something in handing down a majority opinion that is in any way inconsistent with the text, that’s already possible; hand-down audio is currently available, just not until months later (when lawyers can use it even if the press won’t). The question reduces, then, to why, if the audio will eventually be public, live-streaming it is still a problem.

Given how the argument live-streaming evolution took place, it certainly seems likely that, at some point, the Court made an affirmative decision to not live-stream hand-downs. Any such decision, in my view, was and remains an unfortunate one. We obviously don’t have a right to have the Court live-stream opinion announcements. But this seems like a relatively low-cost move that would not only dramatically increase the public transparency of one of the Court’s most significant acts, but also make it easier for the justices, both in the majority and in the dissent, to speak directly to the American people, rather than relying upon reporters and analysts (like me, for CNN) to break down their most important work in real-time on live television and radio.

Obviously, we’d still do that in a world with live-streaming opinion announcements. But at least then, the justices would get to go first.

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SCOTUS Trivia: The Happiest Term?

As noted above, there is a bevy of excellent scholarship about the justices’ statements from the bench. One useful resource, in particular, is a 2010 Law Library Journal article by Jill Duffy (a research librarian at the Supreme Court) and Elizabeth Lambert (a lawyer at the Federal Judicial Center).

Among other things, Duffy and Lambert compiled a database including every dissent from the bench that could be verified going back to the October 1969 Term (Chief Justice Burger’s first). And one of the interesting data points they discovered is that, for as unusual as an oral dissent is, terms with no oral dissents are even more rare. Prior to 2010, the last one their study identifies was OT1984.

Of course, there were no oral dissents in OT2019, OT2020, or OT2021. But I am pretty sure, from my own anecdotal research, that every other term since OT2009 had at least one (including, as of Friday, this one). As for why OT1984 was the last term with hand-downs from the bench and without any oral dissents? The best I can say is ¯\_(ツ)_/¯.

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1. Borrowing from the English tradition, the Court for nearly a decade handed down its opinions seriatim—with each justice writing, and delivering, their own judgment.