Slaughter and Cook were paired together, following what the Chief Justice (probably) directed.
I follow a fixed routine on Supreme Court decision days. On one monitor I monitor the SCOTUSBlog live blog. On another, I keep the SupremeCourt.gov opinions page open. A third screen has Adobe Acrobat ready, while a fourth displays the FantasySCOTUS database where I immediately assign scores to the cases.
Typically, SCOTUSBlog announces the case name and the authoring justice a few moments before the PDF link appears on the site. (Around 2010, the PDFs were simply named [docketnumber.pdf], so I could sometimes anticipate which cases would drop; that practice changed after I wrote about it.) When a Justice reads a dissent from the bench, we must wait a bit longer for the next opinion to be released.
Today’s release sequence looked predictable at first, and then it did not.
At 10:01, SCOTUSBlog announced the majority in Watson. Justice Barrett tends to deliver fairly lengthy summaries. By 10:09 SCOTUSBlog announced Justice Kagan’s opinion in Chartie. At 10:15, Amy Howe declared: “We have Slaughter and Cook, both from Roberts.” Both PDFs were posted at that moment. I assumed that Roberts announced from the bench that he authored the majority in both cases, which would explain the online posting of the files. Yet Mark Walsh’s essential reporting reveals a different sequence:
Roberts announces that “I have the opinion of the court in two related cases.” This could be the transgender sports cases, but he quickly adds, “I will start with Trump v. Slaughter.”
Even though Roberts had not yet begun announcing the Cook opinion, that opinion was still posted online immediately and distributed to the press room as a bundle.
At this moment, reporters in the Press Room are being handed copies of both Slaughter, about President Donald Trump’s attempt to remove a member of the Federal Trade Commission, and Trump v. Cook, about his efforts to remove a member of the Federal Reserve Board of Governors. In fact, the two lengthy opinions have rubber bands around them.
I cannot recall a single instance where a Justice announces two related cases and both PDFs are posted simultaneously.
For example, on May 28, Justice Barrett had the majority in two related cases, Rutherford v. United States and Fernandez v. United States. SCOTUSBlog announced Fernandez at 9:02 and posted the PDF then. The Fernandez dissent referenced Rutherford, which, as a commenter noted, “currently does not exist.” At 9:09, SCOTUSBlog announced the ruling in Rutherford, and the PDF arrived a minute later. This has been the usual routine for as long as I can remember.
Indeed, Mark Walsh said that between Roberts’s majority and Sotomayor’s seventeen-page dissent, roughly twenty-seven minutes would elapse.
But it will be quite a while before we get to Cook. . . .
Roberts, who kept his reading glasses on during the dissent, says, “I will now turn to the opinion in Number 25A312, Trump versus Cook.”
It is 10:42, and the rest of the world, including the Press Room, the president, the markets, and the nation, have known the outcome of this case for a good half hour before most of us in the courtroom do (given it was already posted on the court’s website and reported on in places such as SCOTUSblog).
Mark is prudent to reference markets. A friend wrote, “Roberts was so spooked about causing a market scare that he kept Cook for himself and then apparently had it released to the public before it was even announced in court.” I tend to believe it.
The Chief wanted to spare nearly thirty minutes of suspense, while Sotomayor read her dissent on the fate of the Federal Reserve. He remembers well the uncertainty that unfolded during the Obamacare handdown. The markets could have reacted negatively if Cook’s fate remained unknown. So the Chief Justice (likely) ordered the Court to post the PDFs and release the bundled opinions together. And, of course, the Chief will reserve birthright citizenship for the last moments of the term to signal to the public how nonpartisan the Court is.
I have finished reading the Slaughter majority, and I will have much to say in due course. For now, here is an initial thought. The Chief Justice is highly critical of the Humphrey’s Executor majority, suggesting it was a political ruling aimed at clapping back at President Roosevelt. Roberts relies on that background, at least in part, to justify overruling the decision. I wonder whether Roberts experienced any cognitive dissonance. Nearly every major ruling he has issued—and even the timing of Slaughter itself—appears rooted in Roberts’s naked political instincts. How will Roberts’s political precedents be viewed once he is off the bench? I would bet they will be treated with the same respect that Humphrey’s Executor received. Whatever theatrics the Chief was trying to stage with Trump will be forgotten, just as the ill-fated efforts by the New Deal Court to thwart FDR will be. Roberts’s opinions cannot compare with a ruling like Justice Scalia’s Morrison dissent, which endured and ultimately prevailed.
