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August 24, 2012

"Do the justices really deserve a three-month vacation?"

As I try to keep up with the sizeable number of criminal law opinions that the federal circuit courts hand down this time of year, the question in the title of this post caught my eye as the sub-heading of this notable Slate commentary by Amanda Frost.  Here are excerpts:

It’s August. Do you know where your Supreme Court is?

A good bet is that none of the nine justices are in Washington, D.C. As Chief Justice John Roberts once quipped: “Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”  (Roberts made that statement while serving as an attorney in the Reagan Administration.)  The justices are free to leave town as soon as they issue their last decision of the term in late June, and they are usually not to be found back in the nation’s capital until the first Monday in October — the official start of the new Supreme Court term.  Many of the justices use this chunk of free time to travel, lecture, write books, and teach, among other activities. This summer is no exception....

Should the leaders of the judicial branch be in a position to use “summer” as a verb, particularly when they take advantage of the time off to moonlight as law professors? Or is the summer break a harmless perk?

Either way, the summer recess comes with some significant costs.  Because the justices do not meet to decide whether to grant or deny review in cases during the summer months, thousands of legal petitions pile up during their absence.... The impending summer recess can also force the court to rush decisions without taking the time to articulate their reasoning....

The three-month break is particularly galling at a time when the Supreme Court decides fewer cases than any other court in modern times.  In recent years, the court has heard an average of about 80 cases a term, which is half the number they heard 20 years ago and makes up fewer than 1 percent of the approximately 10,000 review petitions they receive. The rest of the federal judiciary does not get the same extended summer vacation, and they handle a great deal more cases.  It is also a little disconcerting that many of the justices use the time off to generate outside income.  Shouldn’t their time be filled by the job they are paid (by all of us year-round working taxpayers) to do?

Of course, the summer recess probably offers some important psychological benefits. Hopefully, the justices use the break to reflect on the previous term and their role in our system of government.  Visits to foreign countries will likely broaden what otherwise might become parochial perspectives....

Still, it’s worth remembering that the justices did not always have it so good.  In 1789, Congress required the very first Supreme Court to meet in August for the start of its term — and this in an era without air conditioning.  Worse, that Congress assigned the justices double-duty as circuit court judges: In addition to deciding cases as members of the Supreme Court, the justices were required to “ride circuit” around the United States to hear cases in their capacity as lower court judges.  Circuit riding continued for the next 100 years.

So perhaps Congress should abolish the court’s three-month recess, and maybe even reinstate circuit riding, as a few scholars have already suggested.  Of course, these hardships will make a job on the Supreme Court less attractive than it is today.  That was certainly the case in 1801, when President John Adams was turned down by his first choice for chief justice before finally convincing John Marshall to accept the post.  (Former Chief Justice John Jay declined Adams’ nomination to serve in that position again, saying that the office lacked “dignity.”)  If nothing else, abolishing the justices’ summer vacation might lead to greater turnover on the high court — a possibility that might appeal to Democrats, Republicans, and any justice who’d rather spend more time on the Mediterranean.

August 24, 2012 at 05:54 PM | Permalink


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must be nice. i earn 4 weeks a year after 14 years with same employer and even then i'm lucky if i find the time for 3-4 days at a stretch. let alone 3 months!

Posted by: rodsmith | Aug 24, 2012 9:12:50 PM

I am no fan of today's Supreme Court, but I shudder at the idea of Congress trying to muck about in its business these days. I'd like to think there are enough sane people in Congress who likewise feel that just because they might have the power to modify the status quo does not mean they should.

Just because there's a three month recess does not mean that it has to be a vacation, and the justices can justly be criticized for using it as such, but requiring them to work would not necessarily result in better decision making.

On the other hand, if Congress were to require the justices to do something during the recess, I personally would like to see them required to sit as trial judges and hear criminal cases during that time. Make them apply the sentencing guidelines, revoke supervised release terms, deal with juries, hear live testimony from witnesses, law enforcement officers, and defendants, and generally immerse themselves in the sausage factory of today's criminal justice system. Who knows what might come of it?

Posted by: C.E. | Aug 24, 2012 11:36:34 PM

No. The Supreme Court does not deserve a three month vacation. They deserve a twelve month vacation a year.

Posted by: Supremacy Claus | Aug 24, 2012 11:51:08 PM

No - and neither do law professors.

Posted by: Grotius | Aug 25, 2012 12:27:33 AM

I don't see how Congress would have the authority to "abolish the court’s three-month recess" and suspect SCOTUS would simply deem such a law unconstitutional. They're appointed for life. Who's going to stop them?

Posted by: Gritsforbreakfast | Aug 26, 2012 4:23:53 PM

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