Saturday, June 22, 2013

Who Loses When the Supreme Court "Procrastinates"?

Andrew Cohen at The Atlantic argues that we all do.  (H/t to Brian Roth.)  Cohen says that putting off the Big Four (and seven others) to the last week of June risks confusing the issues for the public--if only because there's not enough time and media space to adequately explore and critically analyze them:

My point is that I believe the Supreme Court doesn't just owe us a more timely resolution of (the increasingly fewer) cases it takes.  The justices also owe us all the opportunity to reasonably absorb the decisions they do hand down in a fashion that increases the chances those decisions will be accurately and adequately evaluated as quickly as possible.  The sound and fury next week, as the decisions rain down upon us like cicadas, will undermine that possibility.  And from an institution that is the least accountable and transparent anyway, that's a shame.

This is an important and correct conclusion, echoed by others.  The problem is particularly acute this Term, with four big opinions that overlap in equal protection.  We'll all be scrambling to make sense of the individual opinions next week, but also what they say as a body of law on constitutional equality.  

But Cohen's important conclusion doesn't depend on his unlikely "(cynical) theory" (also shared by others), that "perhaps it's time to ponder whether the Court is manipulating the timing of the release of its most divisive rulings to massage the impact of those rulings upon the court of public opinion"--that is, that the Court is doing this deliberately.  This kind of coordinated and calculated move seems implausible for a Court of nine independent justices, any one of whom might throw a wrench into the works at any time (by, e.g., insisting on modifying an opinion in reaction to a colleague's opinion, or some such).  This would require either a remarkable degree of coordination among the nine, or a remarkable degree of defection by a single or small group of justices, all toward the end of undermining public understanding and debate of the Court's work.  Whatever else we might say about the Court's foot-dragging, that seems extremely unlikely.

Still, Cohen's exactly right on the effect: issuing these rulings, and others, all in the last week of June, isn't good for for transparency, democratic legitimacy, or public understanding.  It isn't good for anyone.


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Lets be clear, they have as much time as they want to take to adequately review and report on these cases. They simply wont because they want to be first with the analysis not the best.

Posted by: Jerry | Jun 22, 2013 4:43:44 PM

Yes, good point. And in the rush, the media too often do a slip-shod job. Remember last summer's initial reporting on the PPACA case?

Posted by: Steven D. Schwinn | Jun 23, 2013 4:25:00 AM

There could be even more coming this week. The NY Times reported on April 20th that Sen. Patrick Leahy hinted there may soon be a Sup Ct confirmation fight. "...[A] hint worth noting since he knew months before the public that the last two Court vacancies were looming."

Posted by: Franklin Siegel | Jun 23, 2013 11:51:02 AM

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