I should let everyone know that I am currently leading in Fantasy SCOTUS league. Thank you.

The Court has been criticized for releasing only four opinion going into the winter break and Linda Greenhouse even suggested that internal wrangling over Citizens United may have “sucked the air out of the term.” Maybe so, but the Court has done nothing publicly to suggest that this term is progressing differently from any other. In fact, last year, the Court had only released two substantive opinions in argued cases and DIG’ed another. In OT07, the Court had released five opinions going into the winter break. In OT06, the Court had released four opinions and DIG’ed one case. To recap, here are the number of decisions on argued cases:

The Roberts Court’s trend towards releasing opinions late in the term is well-documented and commentators should not be surprised to see only four opinions heading into the winter break. The biggest counter to this argument is the fact that the Roberts Court has been making an effort to load the docket with cases during the first few months in an effort to soften the inevitable end-of-term rush to finish opinions. I’m not sure packing cases early would have a huge impact on decisions being released before Christmas although I do think there could be an increasingly large number of opinions released during February and March.

With all of that in mind though, Citizens United should be considered late. Capitol Hill is waiting for the decision and campaigns around the country are treading lightly in anticipation of the option. The Supreme Court’s delay will only extend the period of uncertainty.

The Supreme Court handed down only orders this morning, meaning the next possible time for it to release an opinion in Citizens United v. Federal Election Commission is early next year.

Several commentators, most notably John Elwood on Volokh Conspiracy and Tony Mauro for the Legal Times, have considered the possible reasons and consequences of the Court’s rather delinquent decision. earlier this year I took a look at the cases from OT07 that took longer-than-expected and the stats generally support what the pundits have said. The average number of days for an opinion is about 92. The longest opinions from OT07 were 202 and 232 days, respectively. US v. Williams took 202 days, split 7-2, and had three opinions. US v. Santos took 232 days, split 5-4, and had four opinions.

The case with the greatest number of opinions was Department of Revenue of KY v. Davis. It took 197 days, split 7-2, and had seven opinions (Souter(m), Stevens(c), Roberts(c), Scalia(c), Thomas(c), Kennedy(d), Alito(d)).

On the other hand, McConnell v. FEC took about 92 days, split 5-2, and had three majority opinions, three concurrences, and two dissenting opinions. Notably, the decision in McConnell was released on December 10, 2007, relatively early in the year for an opinion and not even on the last day for opinions before the break (another opinion was released on December 15)!

In my opinions, the number suggest that the Citizens United decision will be as far reaching as people expect but I think there will be far less division than the McConnell opinions. The Court could probably churn out an opinion in a week if each of the Justices was to simply write an opinion for himself or herself and the Court issue nine opinions. In an effort to fulfill some of his nomination pledges, the Chief Justice may be placing a greater emphasis on writing a majority opinion (that I expect he will write) that can drag along a majority for the crux of his argument.

The Oyez Project has released audio from oral arguments for each of the cases from the last term.

The Court sat for its traditional “class photo” yesterday, to the apparent amusement of less than half the members of the current Court.

You can also find a video taken at the loosely termed “photo shoot” here. I should note that the Court released a few different photos from the shoot and in all of them, Justice Alito looks determined to avoid having his soul captured by the liberal photograph-making devices being pointed at him.

Supreme Court class photos have a tradition of capturing bizarre moments. One of my favorites is the class photo from 1986, taken after Chief Justice Rehnquist’s promotion and Justice Scalia’s arrival on the bench. Thurgood Marshall gives the camera his best smile, but he seems surprised to still be on the court.

Another all-time favorite is this below, taken in 1925. Note that the two Justices standing on the left, Justices Stanford and Sutherland, look nearly identical. The Justices standing on the right also look like they could be related.

The Supreme Court released its orders list from its long-conference yesterday and among the 12 cases granted is a potentially landmark ruling on the Second Amendment.

The Court granted review in McDonald v. City of Chicago, a case decided by the Seventh Circuit in early-June. SCOTUSblog has a collection of cert. stage briefs that you can access here and David Kopel has an intersting collection of background reading available on Volokh Conspiracy here. Notably, well-regarded conservative judges Frank Easterbrok and Richard Posner both ruled against incorporation in this case.

Well, I made a mistake yesterday. Relying on the WSJ Law Blog’s onsite observer, I reported that General Kagan had worn a blue pants suit. I was wrong.

In fact, the Washington Post and Above the Law are now reporting that General Kagan chose a black suit with a light blue blouse with which to disgrace the Office of the Solicitor General. ATL confirmed the choice of attire with General Kagan herself but was unable to get her to confess her choice of designer.

According to the Post, the DOJ official policy still requires men to wear the morning coat but now makes the traditional attire optional for women.

For all the trivia nerds out there, I forgot to mention two important, but oft-unmentioned facts about yesterday’s argument.

General Kagan opted not to wear the traditional grey morning coat that male Solicitors General wear. Instead, according to the WSJ Law Blog, she wore a blue pants suit. Of course, the writing was on the wall.

Additionally, the the formal collar worn by Sotomayor and gifted to her by Justice Ginsburg, is called a jabot (pronounced zha-BO). In their recent interviews with C-SPAN, both Justice Ginsburg and Justice O’Connor expressed a lot of frustration at their initial difficulty in obtaining proper judicial couture, so I suspect this gift was much more meaningful than we would typically assume.

I mentioned some of this stuff on the DailyWrit’s Twitter, but I’m getting a little lazy about posting these factoids with all deliberate speed. My apologies.

If you’re looking for expert, and I use that word very literally, you can find an excellent write-up by Rick Hansen of Election Law blog here. If you don’t believe me, even Eugene Volokh gushes about Hansen a bit here.

Hansen posits up some interesting analysis and I absolutely agree with his parting shot that this was an excellent set of oral arguments and each of the advocates was impressive. I’m not typically a big fan of election law (stemming solely from the fact that there are only a few fields of law about which I know less), but I thought the arguments today were fascinating and each of the advocates provided an example of superlative advocacy.

When Chief Justice Roberts first sat on the Court on October 3, 2005 in IBP, Inc. v. Alvarez, he spoke twenty-four times and his first question appeared on page 15 of the transcript. Following that question, he went back and forth with Carter Phillips, a man with whom the Chief Justice was already acquainted, for several pages. It is possible that the Chief Justice’s familiarity with the three advocates (Tom Goldstein, Irv Gornstein, and Phillip) in IBP made that setting a more comfortable one for a justice hearing their first oral argument.

By contrast, when Justice Alito first sat on the Court on February 21, 2006 in Rapanos v. United States and he asked a single question. His only question appeared on page 5.

Similarly, Justice Sotomayor spoke only four times today during her first oral argument on the Supreme Court. Her first question came on page 24 and she went back and forth with former Solicitor General Ted Olson with a few lengthy questions.