Monday, October 06, 2014

Abolish the Supreme Court "Term"

by Michael Dorf

Today is the first Monday in October, i.e., the opening day of "October Term 2014" at the Supreme Court. The start of a new Term is an occasion for commentators to reflect on the state of the Court's jurisprudence overall or in particular areas, to lament some aspect of the Court's procedures (such as the refusal to permit arguments to be televised), and to preview the cases already docketed and those in the pipeline. Those are all fine enterprises, and I have tried my hand at each of them in the past, but today I want to suggest that the idea of a Supreme Court "Term" is an anachronism that should be abolished.

Lower federal courts and most state courts do not have formal terms. Instead, they are in session continuously. That does not mean that they hear cases every day, of course. Federal appeals court judges typically sit in panels for a week at a time, then retreat to their chambers to write opinions and prepare for the next sitting. Likewise, district court judges have motion days, days when they meet with counsel in chambers, days when they supervise jury selection, etc. So judges in these courts are not doing everything every day. However, they do not divide up their cases into discrete terms. They take the cases as they come.

By contrast, the Supreme Court begins hearing its cases in October and continues to hold arguments through April. It issues merits opinions throughout the Term, but finishes up by the end of June. Review granted between late September and roughly January results in a case being docketed in the current Term, whereas review granted later results in a case being docketed for the following Term. The relevant federal statute provides for this one October Term as well as any "adjourned or special terms as may be necessary," and the Court occasionally schedules special sessions. For example, Citizens United v. FEC was (re-)argued in September 2009, a month ahead of the start of the regular Term. But such special sessions are quite rare.

I favor abolishing the formal Term--and leaving the Court in continuous session--for three main reasons, which I'll list in descending order of importance:

(1) As various Justices (especially Justice Scalia) have rightly noted, cases argued in March and April are often decided in a hurry, leading to sloppy opinions. The problem is not so much the small errors that Justices occasionally make (and sometimes correct in revised versions of the opinions), as it is a failure fully to think through the consequences of a rule of law. Lawyers and lower court judges parse the language of Supreme Court opinions very carefully, so it is unfortunate that time pressure sometimes leads the Court to take less care in fashioning those opinions.

(2) Even after the Court recesses at the end of June, the Justices are available via phone and internet to act on emergency petitions, and, as noted above, in extraordinary circumstances, they will reconvene in Washington. But the fact that the Court is formally in recess from July through September may create a psychological barrier to acting in this period.

(3) The existence of a "Term" distorts public discussion of the work of the Supreme Court. Each year in late July or early August I speak at the Practicing Law Institute's one-day panel on the prior Supreme Court Term. In recent years, I have taken to prefacing my remarks with the observation that the "Term" is not the natural unit of analysis for the Court. Consider that even casebooks that adopt a historical approach to the work of the Court are not organized by Term. One might study "the Marshall Court" or "the Court during the New Deal," but it is quite artificial to study cases one Term at a time. Yet the organization of the Court's time into discrete Terms leads journalists and scholars to gather yearly and reflect on what happened the past Term. Was it a conservative or liberal Term? Why did the Court hear a large number of patent cases? Etc. Such questions would look different if focused on longer (or occasionally shorter) periods.

Having offered some reasons to abolish the Term, let me acknowledge two disadvantages of doing so. First, I think the Justices would resist the proposal because they're used to being out of session for July, August, and September. As a professor, I can hardly fault them for that preference--although I will say for the record that I am not "on vacation" when I'm not teaching; I devote myself full time to my scholarship. The justification for three months "off" for Supreme Court Justices is harder to identify, but assuming there is one, being in session continuously would not necessarily increase the Court's overall workload or the number of days each year when the Justices hear arguments.

Second, having a discrete "Term" probably plays a role in enabling the Court's tradition of disposing of all of its cases in a timely way. Eliminating the "term" designation would remove some pressure to decide cases with alacrity; this is the flipside of my point (1) above. But I think one shouldn't make too much of this point. Case management techniques adopted by lower courts control backlog and the Supreme Court has the huge advantages of a much smaller caseload and discretion over nearly all of its docket. Something like a six-month rule could be adopted either formally or informally as a means of ensuring that the Court stays on top of its docket in a post-Term world.