The fine print: Why implementing a Supreme Court ruling can sometimes take longer than you think

·5 min read

WASHINGTON – To quote Katy Perry, when it comes to Supreme Court opinions, just because it's over doesn't mean it's really over.

A series of major decisions from the nation's highest court – on abortion, guns and immigration – underscored the importance of the somewhat arcane process that unfolds once the justices hand down their highly anticipated rulings.

Even the opinions themselves are subject to revision, though changes are rare.

Many states experienced real-world impact from the procedural intricacies when the Supreme Court overruled Roe v. Wade this summer, ending the constitutional right to abortion. Many states had "trigger bans" prohibiting 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 took effect immediately after the Supreme Court issued its opinion 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 opinion. Tennessee's ban is set to take effect Aug. 25.

Usually the process doesn't much matter. Sometimes, it does.

Here's a look at what happens after the Supreme Court rules.   

What is a judgment?

The Supreme Court's "judgment" is different from its opinion or ruling. The short document gives formal notice to a lower court – usually to the U.S. Court of Appeals – about whether the justices upheld the lower court's decision or reversed it. Most times, the judgment arrives about a month after the opinion. During that time and for a specified time after the judgment is issued, parties involved in the lawsuit can ask for a rehearing (though that almost never happens).

So who cares? Generally, hardly anyone.

But consider what happened in the Supreme Court's highest-profile immigration case this year. A lower federal court blocked the Biden administration from ending a Trump-era policy that required migrants seeking asylum in the USA to remain in Mexico while their claims were processed. A 5-4 majority ruled President Joe Biden could end the program, but the Supreme Court had to formally tell the lower courts to lift the injunction.

That's where the judgment comes in.

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In that case, the procedural details mattered because some migrants have been caught up in a program the Supreme Court said Biden may end. An anonymous Department of Homeland Security spokesperson told Time magazine that the administration was waiting for lower courts to "act expeditiously once the judgment has issued" before ending the program.

Brazilian migrants make their way around a gap in the U.S.-Mexican border barrier in Yuma, Ariz., seeking asylum in the USA after crossing from Mexico on June 8, 2021.
Brazilian migrants make their way around a gap in the U.S.-Mexican border barrier in Yuma, Ariz., seeking asylum in the USA after crossing from Mexico on June 8, 2021.

When is a Supreme Court ruling final?

When the Supreme Court hands down an opinion, it becomes the "law of the land" immediately, experts said. Sean Marotta, an appellate attorney at Hogan Lovells, noted that there's a difference between the "machinery of litigation in the case before the court" and when the court's decision changes the law.

The decision, Marotta explained, "becomes the law as soon as it is issued."

That's partly a practical consideration: A Marylander controlled by a state gun law that is essentially the same as the conceal-carry permit requirements in New York that the Supreme Court struck down in June would be able to sue right away. A plaintiff would cite the Supreme Court decision about New York's law – and would probably win.

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That's why Maryland Gov. Larry Hogan, a Republican, moved within days of the Supreme Court's decision in the guns case to suspend the state's similar prohibitions.

"It's sort of a philosophical question, right? If you're not subject to the judgment, you never have to respond. But if you fail to respond and you're sued, you can be sued for damages and have to pay attorneys fees," explained Josh Blackman, a law professor at South Texas College of Law Houston. "It's also a rule of law issue. Even people who hate this Supreme Court, they say it's not legitimate. That's nice. But they all followed it."

Demonstrators rally in support of the Second Amendment in Oklahoma on June 20, 2020.
Demonstrators rally in support of the Second Amendment in Oklahoma on June 20, 2020.

So Supreme Courts opinions are set in stone?

Not exactly.

The actual wording of an opinion handed down by the court during the term is subject to change. On opinion days, the Supreme Court distributes what are known as "slip opinions." A close inspection shows that those opinions include a disclaimer noting they are "subject to formal revision" and encouraging anyone who spots a "typographical or other formal" error to reach out.

They're not final until they're published in a set of books known as the U.S. Reports.

A law review article in 2014 by Harvard Law School professor Richard Lazarus documented instances in which justices 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 pretty minor.

In the case of a public high school football coach who lost his job after praying on the 50-yard line, the court revised the opinion last month to change a reference to the First Amendment's "Free Speech" clause to its "Free Exercise" clause, as in the exercise of religion that the coach had been engaged in. In a ruling in June blocking an Environmental Protection Agency effort to regulate power plant emissions, the court revised its opinion a few weeks later to change the word "toxic" to "hazardous."

This article originally appeared on USA TODAY: Supreme Court's opinions weren't the last step in guns, abortion cases