I have written about bilateral judicial reform: how can Congress and the Supreme Court work together to reform the institution? In a new series for SCOTUSblog, I take a different approach: unilateral SCOTUS reform. What can the Supreme Court, acting alone, do better? These proposals are, in large part, a series of thought experiments. Some of them are admittedly off-the-wall and are unlikely to be adopted. Others may seem such common sense that they can be readily adopted. But all reconsider the status quo and what procedures are worth keeping and which should be changed.
My first installment calls on the Court to eliminate the summer recess. Here is a snippet:
In my article Bilateral Judicial Reform, I proposed that Congress should mandate that the court hear arguments year-round. Specifically, Congress would require that the court schedule at least one public sitting for oral argument and one conference per calendar month. But this reform could also come from the court, or even from the chief justice acting alone. Although it is something of a black box how the court determines its schedule, every year the court releases a calendar indicating when there are argument days and when the court will hold private conferences. This process could slowly adjust to hosting more meetings.
The court could ease into change by scheduling a one day virtual meeting in July, in August, and in September. Virtual oral argument and conferences were held during the pandemic period. They were not ideal but were used effectively when the justices could not assemble in person. And the circuit courts of appeals routinely hold online arguments. Virtual sessions work well for my plan because the justices tend to scatter from July through September. Critically, the justices wouldn’t have to alter their summer travel plans. Whatever tensions and conflicts that arise during the term can still be mellowed out as the justices get out of Dodge. . . .
The more fundamental change would require breaking the mold that all opinions must be decided by the end of June. This practice makes sense from a logistical perspective: Any cases argued during a particular term should be decided during that term. But in the long run, this concern is myopic. Supreme Court opinions establish rules for “the ages.” Why should a landmark opinion argued in late April be rushed out by June? No one does their best work under time pressure. Rushed compromises can create unintended problems for generations unknown. An opinion should be released when it is ready and not accelerated to meet some artificial vacation deadline. This utilitarian calculus may offer the strongest justification to eliminate the summer recess: the justices will produce better opinions without the Fourth of July looming.
My next installment will call on the Justices to hold regular press conferences.
