The Best for Last: The Timing of U.S. Supreme Court Decisions

By Epstein, Lee; Landes, William M. et al. | Duke Law Journal, March 2015 | Go to article overview

The Best for Last: The Timing of U.S. Supreme Court Decisions


Epstein, Lee, Landes, William M., Posner, Richard A., Duke Law Journal


TABLE OF CONTENTS  Introduction I. Some Preliminaries    A. Defining a Big Case    B. A First Look at Whether Big Cases Cluster at the End      of the Term II. Evaluation of the Three Hypotheses    A. Work-Time Factors and End-of-Term Clustering       1. Regression Models       2. Results    B. So Why Do Big Cases Cluster at the End of the Term?.       1. Gross and Net (or Pure) Big-Case Effects       2. Results       3. Additional Empirical Analysis Conclusion 

INTRODUCTION

High court judges manipulate the timing of their decisions. In Brazil, for example, judges have been known to delay hearing the case or announcing or publishing the decision until there is a more favorable political climate (or court). (1) Strategic timing of judicial decisions also seems to occur in the U.S. state courts. (2) In contrast, the Justices of the U.S. Supreme Court, once they accept a case for review, (3) rarely if ever delay decision in this way. (4) The Court usually issues its decision within three months of oral argument; (5) only the very rare case bounces around the chambers for more than six months, and almost every decision is issued in the same term in which the case is argued. (6)

Still, commentators have long speculated that the most important and, often, controversial and divisive cases--the "big" or "blockbuster" cases (we'll use "big cases" for brevity)--are issued in June (the

last month before the Court's summer recess) and mostly in the last week or two of June (7)--the so-called "end-of-term crunch." (8) This shouldn't be surprising. More than 30 percent of the decisions in a term are issued in June (see Figure 1) and more than half of the June decisions come in the last week (see Figure 2). But the claim about big cases is stronger: namely, that they are disproportionately decided at the end of June. Imagine the Court decides 100 cases in a term and of these 15 are decided in the last week of June. Suppose further that the Court decides 20 big cases in the term and 10 of them in that last week. Then big cases make up a disproportionate share of cases decided in the last week of June--67 percent (10/15) compared to 12 percent in the earlier parts of the term (10/85).

This Article investigates the phenomenon just described. We begin in Part I by identifying four approaches to determining a "big case": front-page coverage in the New York Times; front-page and other coverage in four national newspapers (the New York Times, Los Angeles Times, Washington Post, and Chicago Tribune); the number of amicus curiae briefs filed in a case; and the number of subsequent citations by the Supreme Court to its decision in a case. Also in Part I we ask whether a disproportionate number of big cases fall at the end of the term. The answer is yes: We find a statistically significant association between each measure of a big case and end-of-term decisions.

Part II of this Article considers three hypotheses for why big cases cluster in the last week of the term:

1. Suppose a case argued close to the end of the term is more likely to be decided near the end of the term than a case argued early in the term (what we call the "compression effect"). If big cases were disproportionately argued later in the term, this would make an end-of-term decision more likely.

2. Big cases have attributes such as more dissents and concurrences that tend to increase the time it takes the Court to decide a case, and thereby increase the probability that a case will be decided near the end of the term (holding constant the month of oral argument, as hypothesis 1 suggests).

3. The Court follows, or acts as if it follows, a policy of issuing the big decisions at the end of the term quite apart from the month of oral argument or the presence of attributes that increase the time it takes to decide a case.

Our test of hypothesis 1, the "compression effect," uncovered no significant relation between big cases and the date of oral argument. …

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