Supreme Court Countdown
With little time remaining, three big immigration cases left to be decided
The clock is winding down on the Supreme Court’s term, and it has yet to issue opinions in twenty decisions, including three on hot-button immigration issues. The court’s to-do list includes announcing where it stands on Temporary Protected Status, access to asylum, and – most prominent of all – birthright citizenship.
The court runs two calendars: the merits docket and the emergency docket. Through the merits docket, the court receives detailed written arguments from the parties, followed by in-depth oral arguments that can stretch over an hour with increasing frequency. The merits docket operates on an October to June schedule. The court begins hearing arguments on the first Monday in October and stops at the end of April. Meanwhile, by tradition, it releases the last of its opinions by the end of June. Since the end-of-June deadline is just a customary practice – it’s not mandated by law – in recent years the court has occasionally released merits-docket opinions in early July. By contrast, the court’s emergency docket operates year-round to accommodate disputes that can’t wait for the court’s usual process to unfold.
Typically, the court releases merits-docket opinions in loose correlation to the date on which the case was argued. The sooner a case was argued, the sooner the justices finalize and release the court’s decision.
That said, more contentious decisions tend to come later in the calendar because they take more time to write. The justices share drafts of their opinions with their colleagues, partly with the hope of winning each other over and partly so that they can respond to each other. The more disagreement that exists, the more time it takes to do this.
The three immigration cases that remain to be decided were heard relatively late on the court’s argument calendar. The court heard arguments in Mullin v. Al Otro Lado, about the federal government’s authority to block migrants at the country’s border to prevent them from applying for asylum, on March 24. It heard arguments over President Trump’s attempt to narrow access to birthright citizenship – in Trump v. Barbara – on April 1. Several weeks later, on April 29, it heard arguments in two cases that it combined into one matter, Mullin v. Doe and Trump v. Miot, that address the secretary of Homeland Security’s power to terminate Temporary Protected Status, humanitarian legal protection created by Congress in 1980. In addition, none of these cases are likely to be unanimous, so the justices need time to circulate draft opinions.
The court also hasn’t decided Blanche v. Lau, a case about the proper standard of proof required to strip a lawful permanent resident of their immigration status and then remove them from the United States.
At this point in the year, the court usually issues opinions on Thursdays. That can sometimes get jumbled by the last-minute rush to release opinions by the end of June, as well as holidays. Last year, for example, Juneteenth, a federal holiday, fell on the third Thursday in June. The court instead released opinions on Wednesday and Friday that week. It issued its final decisions on Thursday and Friday of the following week, the last full week in June.
As of today, the court has announced plans to release opinions on Thursday. It hasn’t said anything about releasing decisions past that, but it’s almost certain to do so. There are simply too many opinions left to be announced in one day. Count on the court also releasing opinions on Thursday, June 25 as well as two more days, possibly as late as Thursday, July 2.
The court does not announce in advance which decisions are going to be released on a given date. Determining which decisions it will announce is a guessing game informed by unsophisticated elimination: Since we know which cases were argued this term, we know which haven’t yet been decided. Beyond that, we just wait and see.