Should the Supreme Court Take Summer Recess? Sure
A recent piece by Amanda Frost at Slate caught my eye with its suggestion that the United States Supreme Court should not take its traditional summer recess running from the end of June to early October. That recess is part of the Supreme Court’s DNA, so, on grounds of tradition alone, there is good reason to place the burden of proof on Frost to show that the situation does not work.
I don’t think that this burden can be discharged by showing (as Frost does) that during the early 1970s several issues required prompt action by the Justices, which might have been hampered by the longish vacation. Surely some more modest adjustment should be able to deal with those issues today, such as a Skype conference if necessary.
Nor do I think that the break becomes galling because the caseload of the Supreme Court is down to 80 per year. For one thing, the number of cases does not give any real indication of the importance of cases on the docket. The decision in NFIB v. Sebelius on the constitutionality of the health care act surely took up a lot of time. Filling the Court’s docket with cases of marginal importance does not seem to make sense, regardless of whether we keep to the present calendar or hope that the Court will hear more cases. I am not aware of dozens of cases that cry out for review, even though there are many areas for which one or two well-chosen decisions from the high court could help. But here too interstitial adjustments should work.
The real issues with the Supreme Court have to do with how it approaches constitutional law, not with the number of cases that it takes. Rethinking its generally deferential approach to economic regulation and the administrative state is the top item on my list, and that can be done within the current structure -- and without these changes. We should not allow small institutional issues to distract from the larger questions. How well does the Court perform in the cases it decides and how should its members be selected? That is where the real debate lies.
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Comments:
Jun '10
Re: Should the Supreme Court Take Summer Recess? Sure
In order to produce some more "wisdom," you have to consume some more wisdom. That requires time and quiet. I think some of them don't get enough time off.
Jun '12
Re: Should the Supreme Court Take Summer Recess? Sure
Hey Sir, do you have any questions lower down on your list that a hack like me could possibly address?
Thanks! :-)
Jul '10
Re: Should the Supreme Court Take Summer Recess? Sure
I read the article. I wasn't impressed.
?Is Ms Frost a liberal - they always seem to be the ones who want to change things just because.
Feb '12
Re: Should the Supreme Court Take Summer Recess? Sure
Professor,
Do you really think only 80 or so legal issues a year have circuit splits or otherwise deserve the attention of the Supreme Court? Why is that even as the number of lawsuits have skyrocketed the number of cases deserving certerari have dropped? Will you at least concede the possibility it may be because the judges get to choose how hard they work and are choosing to work less?
As for their vacations, perhaps if they had less time to decide (either from more cases or longer vacations) they'd have less time to play intra-court politics and be influenced by extra-legal factors.
Jun '12
Re: Should the Supreme Court Take Summer Recess? Sure
Here is my reasoning why it is not only right but imperative they get a long break:
Let us suppose each justice is allowed 4 weeks vacation/pto per year. For simplicity they take one week at a time. That would allow for a possibility of 36 weeks without a full complement of justices. It would be further complicated by the clerks, staff and other supporting individuals taking their own breaks. This scheme of a long break makes total sense in that light, and could be why other institutions like schools run with a large break. Each employee gives up their right to vacation for the good of the community service provided. Can you imagine a school trying to run all year long having 200 teachers, custodians, office staff, cooks, etc. all scheduling 3 or 4 weeks of vacation staggered through the year?
As for the number of cases they take, it would seem that the more decisions are made in lower courts, added to their past decisions would mean more case law to study to make each new decision. It would seem that eventually the sheer weight of past decisions will make judging new cases more and more difficult.
Jul '10
Re: Should the Supreme Court Take Summer Recess? Sure
Keith Bruzelius: Here is my reasoning why it is not only right but imperative they get a long break:
Let us suppose each justice is allowed 4 weeks vacation/pto per year. For simplicity they take one week at a time. That would allow for a possibility of 36 weeks without a full complement of justices. It would be further complicated by the clerks, staff and other supporting individuals taking their own breaks. This scheme of a long break makes total sense in that light, and could be why other institutions like schools run with a large break. Each employee gives up their right to vacation for the good of the community service provided. Can you imagine a school trying to run all year long having 200 teachers, custodians, office staff, cooks, etc. all scheduling 3 or 4 weeks of vacation staggered through the year?
Actually, schools take summer recess because the kids once had to work on the farm for the summer.
If you look in Florida, you find kids go to school all year, with breaks between semesters instead of a big summer break.
Jun '12
Re: Should the Supreme Court Take Summer Recess? Sure
Devereaux, I checked a Florida school year calendar, it still shows almost 2 months off (June and July) with some added breaks like you indicated.
Is it also the policy for the teachers to take time off while students are in class, or do they generally take vacations during the breaks?
Also, it doesn't effect my general thoughts that having a break is a good thing.
Thanks for making me think.