The Supreme Court’s recent announcement that the justices will return to their prepandemic practice of announcing their decisions in open court has been met with a few yawns and a big dose of scorn.
I understand both reactions: Yawns because whether the justices describe their decisions orally or simply post them on the court’s website, as they have done since the spring of 2020, is irrelevant to most consumers of news about the court. And scorn because the court will not stream the announcements live as it now routinely does for its oral arguments.
“The Supreme Court missed an easy win on transparency when it really needs one,” read one typical complaint, published on MSNBC.com.
Both the yawns and the scorn miss a larger point. The oral decision announcements — “hand-downs,” as they are known within the court, as in handing down a decision — are important to the court’s institutional life.
That may seem a counterintuitive observation, I recognize. After all, it’s the decisions themselves that count. The oral summary presented by a majority opinion’s author, and rarely by a dissenting justice as well, is a performance, conducted in front of an assortment of lawyers, journalists and tourists who happen to have scored seats in the courtroom.
Very occasionally a phrase in the hand-down that isn’t replicated in the printed opinion captures public attention, as when Justice Stephen Breyer lamented in his oral dissent from a 2007 school integration decision that “It is not often in the law that so few have so quickly changed so much.” But the printed opinions, published in the official United States Reports, are the ones that make law.
So why do I insist that the hand-downs matter? Because it is in those moments that the Supreme Court meets the public. The courtroom audience may be small, and hardly representative of the public at large, but it is real. This is not the notional public that may eventually read the opinion. It’s not the public that attends the court’s oral argument sessions as spectators to the volleys of questions and answers between the justices and the lawyers. The hand-downs are performances, yes, but what the justices are performing is a kind of accountability. They are showing their faces, explaining themselves. For better or worse, they are owning their work, at the moment of its emergence into the world.
When the court shut down in the spring of 2020 and the justices began hearing arguments over their phones, there were no hand-downs, just postings. That practice continued throughout the following term, when courtroom arguments resumed while the court remained closed to the general public. So far in the 2022-23 term, which began on Oct. 3, the court has not issued any decisions in argued cases, so the hand-downs will return with the first of the term’s opinions later this month.
The Dobbs v. Jackson Women’s Health Organization decision that erased the constitutional right to abortion simply appeared on the court’s website shortly after 10 a.m. on June 24, 2022, pixels on a screen. What a contrast that was with the scene in the courtroom on June 29, 1992, when Justices Sandra Day O’Connor, Anthony Kennedy and David Souter sequentially announced their controlling joint opinion in Planned Parenthood v. Casey.
It was the final day of the 1991-92 term, and this was the last undecided case. The future of the right to abortion, as everyone in the crowded courtroom knew, was about to be revealed. I was in the room that day and vividly remember listening to the justices’ carefully choreographed tripartite announcement, fighting my way through brain fog to grasp that against all expectations, the court was actually reaffirming the essence of Roe v. Wade.
Did it matter to those three Republican-appointed justices that they had a live courtroom audience for their unusual hand-down? I have no doubt that it did, just as it mattered to Chief Justice William Rehnquist to be able to announce a dissenting view on behalf of himself and the other dissenters. In the courtroom that morning, the members of a collective body that had fought a hard issue through to a conclusion (albeit, as it turned out 30 years later, an impermanent one) were in dialogue with one another and, in an almost tangible sense, with the public.
I’m not suggesting that anything about the Dobbs decision would be different had Justice Samuel Alito had to explain in court why Roe v. Wade was so “egregiously wrong” that it needed to be overturned. For all I know, he would have relished the opportunity, and his announcement might well have been as bloodless in person as it appeared on the computer screen. Justices Breyer, Sonia Sotomayor and Elena Kagan, who dissented jointly, would have been something to hear, their 66-page dissent boiled down to a few pithy points.
Until the mid-20th century, justices typically read their entire opinions. Even though opinions were shorter in those days, the process on a busy decision day could take hours. The evolution to what are basically summaries required justices to be selective in deciding what to emphasize and how they want their opinions to be understood. In that way, the hand-down came to serve as both a discipline for the opinion’s author and a key to the author’s own view about what in the opinion really mattered. Maybe the final version of a majority opinion reflects some compromises that the author doesn’t fully embrace. The oral announcement can skip or minimize those points. There’s a sense in which the audience for a hand-down is not only the public but the opinion writer’s colleagues as well.
I agree with the critics of the court’s decision not to stream the hand-downs live as it does oral arguments. For years the justices resisted releasing real-time oral argument audio, only to realize during the pandemic that it did the court no harm whatsoever. I think I understand the distinction the court is making: The argument is the argument, but the hand-down is decidedly not the decision. In an illuminating article on the history of opinion announcements, Tony Mauro, a longtime Supreme Court journalist, quoted an account by Justice William O. Douglas of how Justice Felix Frankfurter’s hand-down departed rather flagrantly from the text of his majority opinion — a point Justice Harlan F. Stone made to him.
“Once Frankfurter, speaking for the court, ad-libbed at length, giving reasons for the opinion that had no resemblance to the opinion. As we walked out, Stone said, ‘By God, Felix, if you had put all that stuff in the opinion, never in my life would I have agreed to it.’”
Nonetheless, these are hardly classified documents, and the public already gets access to them when the court releases the audio files at the end of every term through the National Archives and the nonprofit website Oyez.org, then posts them as part of its archive of every decision. So the justices can be under no illusion that they will not in fact be speaking to the world, even if the courtroom they address is nearly empty.
Still, with few things to celebrate about the Supreme Court these days, the resumption of the oral opinion announcement is one of them. It is one link in the fraying connection between the court and the public, the “we the people” whose interests the court is supposed to serve.
Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.
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