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The SCOTUS Pregame Show

This post is intended for those who do not follow the Court’s work closely, but are tuning in now largely because of the ACA decision. (For avid Court watchers, this stuff is terribly obvious, so I apologize.) My goal is just to briefly explain what work is left for the Court this Term, and how it might affect the timing of when HHS v.Florida (and Florida v. HHS and NFIB v. Sebelius) are handed down.

First, the numbers. Setting aside the ACA cases, the Court essentially has twelve other decisions to hand down. (I say essentially, because Miller v. Alabama and Jackson v. Hobbsare separate cases, though they raise the same basic Eighth Amendment question. Thus, they are sure to be decided together, whether in two opinions or one, and probably with the same majority opinion author.) Those are, in the order of argument:

1.  First American Financial Corp. v. Edwards (argued November 28)
2.  Williams v. Illinois (argued December 6)
3.  Knox v. SEIU (argued January 10)
4.  FCC v. Fox Television Stations (argued January 10)
5. United States v. Alvarez (argued February 22)
6.  Southern Union Co. v. United States (argued March 19)
7.  Miller v. Alabama and Jackson v. Hobbs (argued March 20)
8.  Christopher v. SmithKine Beecham Corp. (argued April 16)
9.  Dorsey v. United States (curvelined with Hill v. United States) (argued April 17)
10.  Salazar v. Ramah Navajo Chapter (argued April 18)
11. Match-E-Be-Nash-She-Wish Band v. Patchak (curvelined with Salazar v. Patchak) (argued April 24)
12. Arizona v. United States (argued April 25)

The Court will hand down one or more opinions–almost certainly more than one–this coming Monday, June 18. The Court will then announce–probably on Monday, probably before noon–whether it will hand down any more opinions later next week. Of course, it will not announce which opinions, just whether it will hand any more down.

In recent Terms, the Court has handed down opinions on Wednesdays or Thursdays of both of the last two weeks of the Term, in addition to the regularly scheduled Mondays. And the Court has already announced that it will issue one or more opinions next Thursday, June 21.

Even so, given that the Court almost never issues more than four or five opinions on the same day, it seems exceedingly unlikely that the Court will hand down the ACA decisions next week–at least if we assume that they will be issued on the last day of the Term. And this seems a safe assumption given their contentiousness and potential complexity.

So putting these pieces together, the earliest date for the ACA decisions would seem to be Monday, June 25. And we will know a great deal more about how likely that date is by next Thursday. If the Court has handed down virtually all of the twelve opinions listed above by next Thursday, then June 25 would likely be the last day of the Term. But if the Court only hands down, say, five or six opinions next week, it will need at least two days the following week to hand down what remains. This would push the last day of the Term to Wednesday, June 27, or Thursday, June 28. And if we again assume the ACA decisions will come on the Term’s last day, they would be pushed to that date.

There is also one important wildcard. Scheduled for today’s conference was American Tradition Partnership v. Bullock, the Montana case that, in some sense, directly challenges the Court’s decision in Citizens United. It is almost certain the Court will do something significant here, something other than deny certiorari. If the Court simply grants cert (which we should know by Monday), then American Tradition Partnership will not add to the Court’s present workload. But if the Court is summarily reversing the Montana Supreme Court (which is what the petitioners seek), the Court will need to write an additional opinion, which will surely prompt at least one dissent, which will in turn prompt some substantial additions to the majority opinion. So if the Court decides to decide American Tradition Partnership on the merits right now, it could push the Court’s Term out further than we would otherwise project (based on the number of argued cases outstanding).

Of course, the Court can ultimately do whatever it wants in terms of the timing of its decisions. If for some reasons the Justices feel they need more time, nothing prevents them from taking a few more weeks. But the institutional norms surrounding these practices are fairly well entrenched, and have obviously produced a swarm of external expectations. At this point, breaking with those traditional practices–unless absolutely necessary–would bring down on the Court some extremely intense (and unwanted) speculation.

So there it is, in a nutshell. Plan your vacations accordingly.

(I omitted two cases in the original post. This version has been corrected.)

Bradley W. Joondeph is a Professor of Law at Santa Clara Law School who publishes the aca litigation blog, where this post first appeared.

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