Supreme Court Opinion Announcements

Up until March 2019, the U.S. Supreme Court’s list of transcripts for the 1973 Term included the following transcripts from July 1974:

Supreme Court Transcripts - October 1973 Term

However, if you visit their website now, you will no longer find the July 1974 transcript for Milliken v. Bradley. This is unfortunate, because it was a unique document: a transcript of the Court’s July 25 opinion announcement, along with two dissents from the bench, rather than the February 27 oral argument.

This raises a number of interesting questions: why was this opinion announcement transcript created, and why was it removed?

What Are Opinion Announcements?

On the day an opinion is released by the Court, a summary of the decision is typically announced by the Justice who wrote the opinion, and they often use simplified language so that the press and the public can more easily understand the legal reasoning.

Like oral arguments, opinion announcements are recorded, but unlike arguments, neither audio recordings nor transcripts are released to the public. Instead, the Supreme Court saves all the recordings until the following October, at which point it transmits them to the National Archives. And it is only thanks to websites like The Oyez Project that we are able to finally listen to those announcements, after they have requested the recordings from the National Archives, extracted the opinion announcements, and matched them to the appropriate cases.

There is an incredible irony here, because it is the Supreme Court’s decisions – not the arguments that precede them – which embody the most important work of the Court, yet the only transcripts and audio recordings you will find on the Court’s own website are those of the arguments, not of the opinion announcements.

I have personally heard Chief Justice John Roberts explain away this irony by claiming that opinion announcements are primarily for the benefit of, say, the family from Iowa who happens to be visiting the Court that day. There was also the implication that since none of the other Justices “sign off” on these verbal announcements, they should not be accorded the same weight as the written opinions.

This is absurd on several levels. First, very few people can afford the time and expense to visit the Supreme Court, and often the people who are in the courtroom on any given day have no idea what will be announced. It makes little sense for the Court to methodically announce its decisions to a random group of people in the courtroom who largely don’t care, while many more people all around the country who do care about the decisions being announced are explicitly denied that benefit – and not just for a day or a week but up to an entire year.

Yes, the written opinion is the definitive embodiment of a decision, and yes, written opinions are released to everyone simultaneously on the Court’s website. But for the Court to also engage in this long tradition of formally announcing opinions and to pretend that these announcements don’t even rise to the importance or value of the oral arguments, is, as I’ve said, absurd.

The Recording of Opinion Announcements

After the U.S. Supreme Court installed a reel-to-reel tape recording system in 1955, the tape recorder was typically only engaged during oral argument. As a result, other Court activities, such as the Marshal’s call to order, admissions to the bar, and opinion announcements, were not routinely recorded – at least not until William Rehnquist became Chief Justice in 1986.

However, even before then, whoever was operating the equipment would occasionally record other events. For example, in 2007, I discovered that the opinion announcements in Time v. Hill and Swann v. Adams had been recorded on January 9, 1967. It’s unclear whether these rare occurrences were at the direction of the Chief Justice or mere happenstance.

Opinion Announcement in Milliken v. Bradley

During a recent audit of all posted U.S. Supreme Court argument transcripts, I discovered one transcript that was out of place: the opinion announcement for Milliken v. Bradley.

I have saved a copy of that transcript here, because I’ve never seen a transcript of an opinion announcement from the Court before, and shortly after the Court was asked about that particular transcript, they removed it from their website. Moreover, the Court did not offer any explanation as to why this transcript was created or whether any other opinion announcement transcripts also exist.

The existence of more such transcripts would be an important find, because many other significant cases were decided in the early 1970s, such as Roe v. Wade, and there are no known audio recordings of those opinion announcements.

Written on March 17, 2019