Oh No! The Supreme Court's Opinion Season Was So Head-Spinning That One Federal Court Got Whiplash

Have you ever heard the expression "opinion season"? A simple statistic immediately clarifies the phrase. During June 2015, the Supreme Court issued more than a third of its opinions in the over seventy cases decided during the term. That's more than one opinion every week day. Sounds like a miserable workload, doesn't it? As if the Justices weren't impressive enough.

Opinion season has a trickle-down effect. Lawyers spend the month of June glued to their computer screens, waiting for decisions that will impact their clientele. Much of America is waiting along with them for the big cases resolving (or upending) the major social questions of the day.

Naturally the lower courts are also paying close attention. Many of the opinions the Supreme Court issues at the end of its term will decide the outcome of the lower courts' pending cases. Every judge, staff attorney, and judicial clerk in the nation is surely sitting on the edge of her seat. Or so one would think.

It turns out, however, that at least one court, the venerable U.S. Court of Appeals for the Fifth Circuit, was less attentive than the rest of us. On July 8, 2015, the Fifth Circuit denied an appeal based on a decision that had been overruled by the Supreme Court on June 15. The Fifth Circuit wrote, "The Supreme Court has granted certiorari to review [the relevant case]. Nonetheless, that case remains binding until overruled by the Supreme Court . . . ."

And then--yes--the Fifth Circuit dismissed the petition, citing the overruled case.

Why is this lone, botched decision so appalling? The U.S. Courts of Appeals are almost always the courts of last resort. The Supreme Court hears fewer than one percent of the cases it receives. If judicial clerks, staff attorneys, and federal judges collectively miss newly hatched Supreme Court opinions, that suggests that other important case law and crucial facts are going unnoticed. Those of us outside the courthouse cannot know which cases fall by the wayside, receiving less judicial attention than they require. Every litigant expects what the courts promise: Justice. But some of us aren't getting it.

Yes, opinion season is head-spinning. No matter. However hard the Supreme Court is working, we expect the lower courts to deliver considered decisions. As a first step, the Fifth Circuit should correct the flawed opinion, which remains on its website for all the world to see.

Time to start counting the days.