It’s August. Do you know where your Supreme Court is?
A good bet is that none of the nine justices are in Washington, D.C. As Chief Justice John Roberts once quipped: “Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” (Roberts made that statement while serving as an attorney in the Reagan administration.) The justices are free to leave town as soon as they issue their last decision of the term in late June, and they are usually not to be found back in the Nation’s Capital until the first Monday in October — the official start of the new Supreme Court term.
Many of the justices use this chunk of free time to travel, lecture, write books and teach, among other activities. This summer is no exception: Justice Antonin Scalia spent most of the summer teaching in Austria; Chief Justice Roberts chose to teach in Malta, while Justice Ruth Bader Ginsburg and Justice Samuel Alito did the same in Italy. Not only are these teaching gigs a delightful respite from the swampy heat of Washington, they also let the justices pad their wallets with about $20,000, a supplement to the justices’ $213,000 salaries.
Should the leaders of the judicial branch be in a position to use “summer” as a verb, particularly when they take advantage of the time off to moonlight as law professors? Or is the summer break a harmless perk?
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Either way, the summer recess comes with some significant costs. Because the justices do not meet to decide whether to grant or deny review in cases during the summer months, thousands of legal petitions pile up during their absence. The court plows through this backlog at their first conference (aptly referred to as the “long conference”) in the last week of September. But they obviously cannot give these petitions the same consideration as those that arrive later in the term. (For this reason, savvy appellate attorneys know that it is best to avoid filing petitions over the summer if they can.)
The impending summer recess can also force the court to rush decisions without taking the time to articulate their reasoning, as at least one scholar argues occurred in the Pentagon Papers case — a momentous case with serious national security implications that was decided in a three-paragraph, unsigned opinion in late June. The summer break was behind the timing of this past term’s health care decision. As was widely reported, a decision had to be made by the end of June because of Chief Justice Roberts’ Malta trip in the first week of July.
When pressing issues arise during the recess, the matter is often handled by a single justice “in chambers” who must make important decisions about whether to grant stays, injunctions or extensions without consulting with his or her absent colleagues.
For example, Justice William Douglas issued an “in chambers” order in August 1973, which put a stop to military operations in Cambodia. He explained that he would normally have referred this question to the full court, but the summer recess made that “impossible.”
The three-month break is particularly galling at a time when the Supreme Court decides fewer cases than any other court in modern times. In recent years, the court has heard an average of about 80 cases a term, which is half the number they heard 20 years ago and makes up fewer than 1 percent of the approximately 10,000 review petitions they receive. The rest of the federal judiciary does not get the same extended summer vacation, and they handle a great deal more cases. It is also disconcerting that many of the justices use the time off to generate outside income. Shouldn’t their time be filled by the job they are paid (by all of us year-round working taxpayers) to do?
Of course, the summer recess probably offers some important psychological benefits. Hopefully, the justices use the break to reflect on the previous term and their role in our system of government. Visits to foreign countries will likely broaden what otherwise might become parochial perspectives. And perhaps most important, it is a chance for the nine scorpions to scuttle out of their bottle and get a much-needed respite from each other. Remember, these jobs come with a life tenure, which means that most of the justices will sit together for decades. (Imagine being forced to work closely with the same annoying co-worker for the rest of your life.)
Still, it’s worth remembering that the justices did not always have it so good. In 1789, Congress required the very first Supreme Court to meet in August for the start of its term — and this in an era without air conditioning. Worse, that Congress assigned the justices double-duty as circuit court judges: In addition to deciding cases as members of the Supreme Court, the justices were required to “ride circuit” around the United States to hear cases in their capacity as lower court judges. Circuit riding continued for the next 100 years.
So perhaps Congress should abolish the court’s three-month recess, and maybe even reinstate circuit riding, as a few scholars have already suggested. Of course, these hardships would make a job on the Supreme Court less attractive than it is today.
If nothing else, abolishing the justices’ summer vacation might lead to greater turnover on the high court — a possibility that might appeal to Democrats, Republicans and any justice who’d rather spend more time on the Mediterranean.
Frost is a professor of law at American University and author of a forthcoming article in the UCLA Law Review entitled “Congress in Court.”