Submitted by Carolyn Shapiro on Mon 20 May, 2013
Today, the Supreme Court issued decisions in four cases. All but one were unanimous as to result, and that one, City of Arlington v. FCC, though important in administrative law, is not a case most members of the public are likely to be following. This may lead some people to wonder what the Supreme Court is doing and when they will issue decisions in the big cases from this Term -- the gay marriage cases (Perry and Windsor), the affirmative action case (Fisher), and the Voting Rights Act case (Shelby County), to name a few.
The short answer is that the dispositions of these cases will almost certainly be announced before the end of June, when the Court goes into summer recess. I say "almost certainly" because there is at least one other, very remote, possibility: Occasionally a case is held over for reargument in the fall. This happened with Citizens United.
At this time of year, the Court generally announces (or "hands down") opinions on Mondays (next week it will be Tuesday due to Memorial Day), and it sometimes adds an additional hand-down days, usually Thursdays, towards the end of the Term. But the Court never announces ahead of time what opinions it will be issuing on a particular hand-down day. So between now and the end of June, every hand-down day has the potential to be a biggie.
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At oral argument in Hollingsworth v. Perry, the Prop 8 case, Justice Kennedy openly wondered whether the case had been "properly granted" and hinted that an appropriate resolution might be to dismiss it as improvidently granted (or DIG it, in the shorthand of the Court. A DIG would mean that the Court would simply decline to decide the case as if it had never granted it in the first place, and the Ninth Circuit judgment would stand. As Tom Goldstein observed, such an outcome is seen as unlikely because, presumably, the four conservative justices would oppose it. And if five justices could DIG a case over the objections of four, then the rule of four -- it takes four votes to grant certiorari -- would be in jeopardy. Today, however, that is precisely what happened. In Boyer v. Louisiana, the Court DIG'ed a case involving a criminal defendant's challenge to his conviction over the dissents of the four liberal justices.
There are of course differences between Boyer and Hollingsworth. For one thing, in a concurrence, three members of the Boyer majority (Justice Alito, joined by Justices Thomas and Scalia) argued that the facts of the case, as they emerged during briefing and argument, were different from the factual assumptions that led to the grant. Nothing similar is likely to happen in Hollingsworth. On the other hand, the long time from argument (October 5, 2012) to decision (April 29, 2013) suggests that there was some jockeying and negotiation going on among the justices -- generally a DIG occurs fairly quickly after oral argument, even where there are separate opinions. So the fact that the Court has not yet DIG'ed Hollingsworth should not lead to the conclusion that it won't.
Submitted by mgruhn on Tue 16 Apr, 2013
Prof. Sanford Greenberg discusses the Supreme Court's upcoming review of whether the Constitution's protection against self-incrimination applies before an individual has been arrested or read his rights.