On Friday, I posed a question in the comments about the Texas law that is an assault on all women, not to mention an assault on civil society. I had seen several people note that the so-called Supreme Court had released their opinion just before midnight, always followed by the comment that the law had actually gone into effect 24 hours before, but I didn’t really understand the significance of that.
Kudos to lurker, who wrote a most excellent response. The answer came long after I posed the question, so I want to share it here where others can see it, too.
Opinions are normally released during business hours, sometimes read from the bench, generally provided in a way that would be accessible to everyone during or around the end of the work day on the east coast. Obvious exceptions are orders or opinions that need to be released in a timely manner to deal with an impending deadline, such as a statute taking effect or an execution warrant becoming valid – both of those types of things typically specify something like midnight or 12:01 AM as when something is effective. An opinion or order issued shortly beforehand can enjoin enforcement of a statute or stay an execution as an example, even if it is a minute before things actually happen.
The TX law took effect essentially at 12:01 AM on September 1. The Supreme Court issued their written thing around 11:something PM on September 1 – 23+ hours after the law took effect. At that point, they could have just issued it the next day during business hours.
Alito is reported to have said in a speech shortly thereafter that the Court had to issue the late night ruling due to the timing of the statute taking effect, suggesting he was wrong about the calendar, which is a potentially devastating problem, or that he was being ridiculous in making his statement. It is also possible that he was worried about other courts enjoining the law and therefore rushed out the order. We saw that with the later opinion from the Austin Federal Court. We also saw a more normal appellate procedure from the 5th Circuit Court of Appeals, which stayed the injunction from the Austin court.
Also, Supreme Court opinions are typically either announced (printed) as written by a justice, or as per curiam. Other justices sign on to the opinions based on whatever changes they want in the language of the opinion. Here, no justice is listed as signing the opinion. However, it is also not listed as per curiam, which would indicate that no justice was responsible individually for the language, but all agreed to it unless they dissented. Justices Roberts, Kagan, Sotomayor and Breyer each wrote dissents which they signed and other Justices joined. So the five majority justices did not want their names on this thing. That is unusual, and does not seem to simply be a printing error (those tend to get fixed within days).
Moreover, this fits with the concept of the shadow docket. Opinions and orders from the Court which come out before full briefing and oral argument are generally used to either preserve the status quo ante (before the thing that is the subject of litigation) or to deal with procedural issues. Sometimes, these early opinions and orders make a meaningful change in circumstances, and those changes are introduced before the parties provide their arguments to the Court. Briefing allows for research and careful explanation of issues and arguments. Oral argument allows for interactive discussion of issues not adequately dealt with in the briefs, such as ideas the justices have. Supplemental submissions can occur as a result of the process as well. None of that is possible with early shadow docket rulings. Even so, shadow docket rulings tend to either be explicitly per curiam (everyone but a dissenter agrees) or signed by the justices. This thing is stranger still as not per curiam and not signed.
None of this inspires confidence in a full and fair opportunity to litigate a case before this Court.
Thank you, lurker! After reading this explanation, I now see that this ruling was even worse than I realized, which I had not thought possible. In the interest of blog space, I’m restricting my tirade to only include words that begin with the letter ‘D’.
Disingenuous. Dishonest. Duplicitous. Deceptive. Devious. Disreputable. Dodgy. Deceitful. Disgusting. Despicable.
New additions from the comments: Dumb. Disrespectful. Damnable. Damned. Deplorable. Disingenuous. Destructive. Dastardly. Disgraceful. Demonic. Divisive. Dangerous. Depraved. Dominionists.
I want to see this ad re-made about the current Supreme Court – the details would different, of course, but it captures the state of the court perfectly. It truly is midnight in America.
Midnight In Washington
— Eleven Films (@Eleven_Films) March 6, 2020