One might argue that Supreme Court justices are more visible today than ever before. Six have published books and Brett Kavanaugh is apparently working on one to become the seventh. Several have recently given television interviews, others have not shied from making public statements.
Yet (as SCOTUSblog readers are likely aware) the Supreme Court is not necessarily a very transparent institution. It still has many mysteries spanning a wide variety of customs, practices, and events. This column will explore a few of the most prominent of these.
The term end
As we saw last week, many of the court’s most high-profile decisions are released right before the justices’ summer recess. Casual observers of the court’s work believe the justices save the big cases for the end, typically in late June (as occurred this term with the birthright citizenship case), and occasionally in early July. But why? There may be no definitive answer.
One theory is that the justices want to postpone as long as possible the spotlight that falls on the court with major decisions and the controversy that often follows. But a more likely explanation is that the high-profile cases are also among the most complicated and divisive decisions of the term. In short, they simply take longer to decide and to explain.
The late Justice William Brennan used to explain that he and other justices were superstitious – that if an opinion was ready to be announced, there should be no delay in case a justice changed his mind. The import of that memory, although decades old, is that the court does not delay decisions; when the opinions are ready, they are announced.
The end of the term to release opinions in argued cases also calls forth questions about how that final day of decisions is determined. In all likelihood, the answer today is simple – the last day for announcement of decisions is when the opinions are finished and ready to be released.
Even assuming that’s the case, it was not always that simple. For about two decades in the 1960s and 1970s, Brennan, for example, spent July and August on the island of Nantucket in Massachusetts. To take a car with him, he had to use the ferry from Hyannis. Then, as now, ferry reservations for late June or early July have to be made in January. As a result, justices and law clerks knew when Brennan’s ferry reservation was, and that date became an informal target for the end of the term.
Relists
As the justices consider dozens of petitions from week to week, some are discussed at their regular closed-door conferences, some are denied without discussion, some are granted review. A handful are put over for reconsideration the following week. Sometimes they are put over – relisted in the court’s terminology – for many weeks. The Relist Watch column by John Elwood covers these cases with detail and significant insight.
But what exactly is happening when the court relists a case week after week? Because the court’s docket for cases is available online, anyone can see the relisting, indicated by the words “DISTRIBUTED for Conference of” and a date. But what the court is doing during this period is something of a mystery with the explanation differing from case to case.
Sometimes the explanation may be very simple. A relist may occur when the respondent in a case, the party that won in the lower court, initially waives filing a response to the petition but then is asked by the court to weigh in. A relist may also occur when, after a case is scheduled for consideration by the justices, the petitioner files an answer to the respondent, called a reply brief.
Relists may also occur for more complex reasons. One explanation when a case is relisted for one or more weeks may be that the court has decided to deny review, and a justice is writing an opinion dissenting from the denial. For example, in United States v. Carter, the court on June 22 denied the Department of Justice’s request to review a decision by the District of Columbia Court of Appeals. The case involved the question of what role race played in police stopping a black man and finding a gun in his possession. The case was scheduled to be considered at the justices’ conference three times. After the third time, Justice Samuel Alito, joined by Justice Clarence Thomas, wrote a three-page dissenting opinion saying the court should agree to hear and decide the case.
Sometimes a relist is a precursor to the court agreeing to hear a petition. Court watchers believe the justices frequently agree to hear a case but hold it over for an additional week to make sure there are no procedural problems that could interfere with consideration of the legal issues. The case of Nielsen v. Watanabe is an example. The case was due to be considered in February but was postponed. After supplemental briefs were filed, the case was listed for consideration twice in June before review was granted on June 22. The issue is when a prison inmate can sue federal officials in the absence of any allegation that a specific federal law covered the dispute.
Sometimes the court may relist a case that they are in the process of deciding without full briefing and oral argument. Such decisions are issued per curiam, meaning for the court but not signed by an individual justice. The case of McCarthy v. Hernandez was relisted eight times before the court on June 22 reinstated the conviction of Pedro Hernandez in the 1979 high-profile kidnapping and murder of six-year-old Etan Patz in New York City.
Law clerks
It is widely known in legal circles that being a law clerk for a Supreme Court justice is a crown jewel credential that opens doors to many professional opportunities. Some law firms are reportedly offering $400,000 to $500,000 signing bonuses for young associates coming from Supreme Court clerkships. And as a path to influential legal jobs, six of the current nine justices (all but Alito, Thomas, and Justice Sonia Sotomayor) were law clerks on the Supreme Court.
How the justices choose the four law clerks to which they are entitled can be a mysterious and secretive process of its own. Some justices have their current clerks help screen for the future, some have screening committees. Most rely on recommendations from judges for whom the recent law graduates clerked while applying to the Supreme Court; these are commonly referred to as “feeder judges.” Recommendations from law professors and former law clerks can also be an asset.
But what actually happens inside the process is known only to the participants. For example, what questions will be asked if an applicant makes it to the interview stage? How much time will an interviewee spend with the justice and how much time with the current law clerks? What other credentials make a candidate most competitive – top of the class at a top-tier law school or experience as a law review senior editor?
Leaks
Much has been written about leaks of opinions or other documents in the last few years. It remains a mystery who is doing the leaking. The Supreme Court maintains that it conducted a thorough investigation of the May 2022 leak to Politico of Alito’s draft opinion overruling the constitutional right to abortion. The court said the investigation into the leak in Dobbs v. Jackson Women’s Health Organization was inconclusive. The Justice Department in President Donald Trump’s second term has threatened to conduct its own investigation, but there does not appear to be an active probe.
Nor has there been any clear sign of an investigation of the leak to the New York Times earlier this year of internal memos from 2016 showing how the court enhanced its use of the “shadow docket,” the process by which the justices decide cases in a short-circuited fashion without full briefing and oral argument.
The leaks, too, remain a mystery of the Supreme Court, and one that – like those described earlier – may well remain so.
