The Marble Palace Blog: Will Opinion Announcements Fade Away?

Thank you for reading The Marble Palace Blog, which I hope will inform and surprise you about the Supreme Court of the United States. My name is Tony Mauro. I’ve covered the Supreme Court since 1979 and for ALM since 2000. I semiretired in 2019, but I am still fascinated by the high court. I’ll welcome any tips or suggestions for topics to write about. You can reach me at [email protected].

Supreme Court justices have announced their opinions from the bench “since the first decision of the Supreme Court in 1792,” according to Bernard Schwartz, the legendary late Supreme Court scholar.

I wrote a law review article in 2013 about the long history of opinion announcements, and came to the conclusion that “since the court’s founding, justices have treated opinion announcements as an important part of their public roles.” And they are especially meaningful when justices announce their dissents from the bench.

The tradition of opinion announcements fell away from necessity when the pandemic struck last year. The justices worked from home, and the public was not allowed into the court, so an oration from the bench was obsolete. Instead, opinions were posted on the court’s website, without the justices’ traditional oral announcements from the bench.

But the justices returned to the courtroom when the current term began on Oct. 4, and with them came social-distanced lawyers involved in cases, credentialed journalists, law clerks and a few others. So, in theory, the justices could have resumed tradition and taken the bench to announce opinion summaries when their first opinions of the term were ready to be handed down.

That first opinion of the term, Mississippi v. Tennessee, came on Nov. 22, labeled by the court as an “Opinion Issuance Day,” a relatively new category on the court website’s calendar. But alas, the justices did not take the bench, including Chief Justice John Roberts Jr., who authored the opinion. It was posted online at 10 a.m. when Roberts would normally have announced the opinion from the bench.

This new arrangement was quickly noticed.

Nina Totenberg, NPR’s long-standing Supreme Court reporter, expressed concern on Twitter. “Is #SCOTUS abandoning another tradition that harkens back centuries & provides a small amt of transparency? The ct will issue opinions Mon, online, w/o the usual announcement from the bench. That was understandable when they were not sitting, but not now, when they r in person.”

An unnamed Totenberg Twitter follower offered a guess as to why opinion announcements may have shut down: “Kagan wrote a dissent that is on fire & they don’t want her reading from the bench?”

That is an unlikely reason for the court to end opinion announcements, but the comment makes a point. Oral dissents from the bench are a class in themselves, taking place only a handful of times each year, but they are powerful because of their rarity. “Oral dissents identify some of the Supreme Court justices’ most deeply held minority opinions,” according to the comprehensive tally of Supreme Court oral dissents collected in the Law Library Journal. It seems likely that current-era dissenters such as Justices Elena Kagan and Sonia Sotomayor would want vocal dissents to persist.

On the other hand, some justices dislike oral announcements altogether, whether they are spoken by the majority author or the dissenters.  The brevity of the announcements worries justices because they can be oversimplified or turned into a form of “spin control.” They don’t want the public to believe that an opinion announcement stands as a precise replica of the opinion itself.  That is why, I’ve been told, that the audio of opinion announcements was traditionally released to the public on a delayed basis.

In the 1940s, Justice Felix Frankfurter once ad-libbed an opinion announcement and gave different rationales for the opinion, according to Justice William O. Douglas in his memoir. As the session ended, Justice Harlan Fiske Stone said to Frankfurter, “By God Felix, if you had put all the stuff in the opinion, never in my life would I have agreed to it.”