WASHINGTON – To quote Katy Perry, when it comes to Supreme Court opinions, just because it’s over doesn’t mean it For real about.
A series of key decisions by the country’s highest court — on abortion, guns and immigration — underlined the importance of the somewhat mysterious process that unfolds once the judges deliver their long-awaited verdicts.
Even the opinions themselves are subject to revision, although changes are rare.
Many states experienced real consequences from the procedural intricacies when the Supreme Court rejected Roe v. Wade this summer, ending the constitutional right to abortion. Many states had “trigger bans” banning abortion once Roe was overturned, but the laws differed on how they defined, precisely, when that was.
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Kentucky’s trigger law went into effect immediately after the Supreme Court issued its opinion on June 24. The trigger law in neighboring Tennessee required state officials to wait 30 days after the Supreme Court issued a “judgment,” a procedural step usually taken about a month after the advisory. Tennessee’s ban goes into effect on August 25.
Usually the process doesn’t matter that much. Sometimes.
Here’s a look at what happens after the Supreme Court ruling.
What is a judgment?
The Supreme Court’s “judgment” differs from its opinion or ruling. The brief document provides formal notice to a lower court — usually the U.S. Court of Appeals — about whether the judges upheld or reversed the lower court’s decision. Usually the judgment comes about a month after the advice. During that time and for a certain amount of time after the verdict is made, parties involved in the lawsuit can request a retrial (although that almost never happens).
So who cares? In general, almost no one.
But look what happened this year in the Supreme Court’s most prominent immigration case. A lower federal court blocked the Biden administration from ending a Trump-era policy that required migrants seeking asylum in the US to remain in Mexico while their claims were processed. A 5-4 majority ruled that President Joe Biden could end the program, but the Supreme Court had to formally tell the lower courts to lift the ban.
That’s where the judgment comes in.
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In that case, the procedural details mattered because some migrants have become entangled in a program that the Supreme Court said could end Biden. An anonymous spokesperson for the Department of Homeland Security told Time magazine that the government was waiting for lower courts to “act quickly once the verdict is handed down” before ending the program.
when is a High Council final verdict?
When the Supreme Court issues an opinion, it immediately becomes the “law of the land,” experts say. Sean Marotta, a professional attorney at Hogan Lovells, noted that there is a difference between the “machinery of litigation in the case in court” and when the court’s decision changes the law.
The decree, Marotta explained, “becomes law as soon as it is enacted.”
That’s partly a practical consideration: A Marylander controlled by a state gun law that’s essentially the same as the New York licensing concealment requirements that the Supreme Court rejected in June could sue right away. A plaintiff would cite the Supreme Court ruling on New York law — and likely win.
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That’s why Maryland Governor Larry Hogan, a Republican, moved within days of the Supreme Court’s decision in the gun case to suspend similar state bans.
“It’s a bit of a philosophical question, isn’t it? If you’re not subject to the verdict, you never have to respond. But if you don’t respond and you’re charged, you could be sued for damages and have to pay attorney fees,” explains Josh Blackman, a law professor at the South Texas College of Law Houston: “It’s also a rule of law issue. Even people who hate this Supreme Court say it’s not legit. That is beautiful. But they all followed it.”
So Supreme Courts opinions set in stone?
The actual wording of a court judgment during the term is subject to change. On opinion days, the Supreme Court divides what is known as “misconceptions”. Closer inspection reveals that those opinions contain a disclaimer stating that they are “subject to formal review” and that anyone who discovers a “typographical or other formal” error is encouraged to get in touch.
They are not final until they are published in a series of books known as the US Reports.
A 2014 law review article by Harvard Law School professor Richard Lazarus documented cases where judges revised opinions in “highly substantive” ways before they were formally printed. Chief Justice Roger Taney added about 18 pages to the majority opinion in Dred Scott v. Sandford from when it was announced until it was formally published months later. The infamous decision in 1857 denied citizenship to African American slaves.
Usually changes are quite small.
In the case of a public high school soccer coach who lost his job after praying at the 50-yard line, the court last month revised its advice to change a reference to the First Amendment’s “Free Speech” clause to the “Free Exercise” clause, as in the exercise of the religion the coach had engaged in. In a June ruling blocking an attempt by the Environmental Protection Agency to regulate emissions from power plants, the court revised its opinion a few weeks later to change the word “toxic” to “dangerous.”
This Article Originally Appeared on USA TODAY: Supreme Court Opinion Wasn’t the Last Step in Gun and Abortion Cases