What Are They Doing? Why Does It Take So Long?

As we all wait for decisions in this Term’s major cases, people may wonder what is taking so long and why the big cases are so often the last cases to be announced. The short answer is that the big cases are also those in which there is most likely to be fairly strong disagreement among the justices, meaning that there are likely to be multiple opinions — and when that happens, the process can take some time. Here’s a quick primer on what happens:

Each week of argument, the justices meet in Conference to discuss the cases. They take a tentative vote at that point. After the Conference, the Chief Justice assigns the majority opinion in each case in which he is on the winning side. In any other cases, the senior justice in the majority assigns the opinion.

In each case, the majority opinion author then begins drafting. Occasionally, a dissenter will start drafting then as well, particularly if the dissenter thinks there is some chance of getting another justice to change his or her mind. (This does happen, although not often.) But more often, the dissents — and concurrences — aren’t written until after the first draft of the majority opinion circulates to the whole Court. At that point all the opinion writers start revising their opinions in response to each other. This is why you often see majority opinions referring to the dissent, and vice versa. Because the justices are essentially having an argument on paper, the opinions go back and forth until everyone is satisfied that they have fully had their say.

This process is what is undoubtedly happening now in the big cases that are yet to be announced. In addition to that, except for Fisher (the affirmative action case), the other big cases were all argued relatively recently. Shelby County (the Voting Rights Act case) was argued in February and the gay marriage cases (DOMA and Prop 8) were not argued until the end of March.

As of this week, the Court is announcing opinions twice a week — on Mondays and Thursdays. The ISCOTUSnow app will have the opinions available as soon as possible after they are announced.