Supremely Slow Out Of The Gates

The Supreme Court has hit several lows in the last few years. It recently had the lowest number of decisions in over a century and it has significantly slowed down its pace of decision releases.  It had set some new records as well including the highest rate of 6-3 decisions ever and the highest fraction of argued cases with at least one dissent (though not the highest number of overall decisions with at least one dissent). We’ve recently even seen the most active new justice in oral arguments in at least a generation.

Now though the Supreme Court has achieved another record through its indecision. This is the first time since the Court began its term on the first Monday in October in 1917 that the Court has not released a slip decision through the beginning of December. To be clear, the Court has had a handful of terms without a signed decision through November or even an opinion from an argued case through November, but not one with literally no slip opinions through November of a term.

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The graph below shows what the number of decisions through the beginning of December look like since 1917.

The overall number of decisions through November has precipitously dropped over time from reaching almost 50 down at its high to one such decision in 2019. Even with this somewhat inconsistent dip over time at least the Court had conducted some decision-making by this point in every term previous to this one which shared the same calendar.

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When this is added to the fact that the Court has only 41 cases on the merits docket for this term so far, the Court’s business this term looks scant. What can account for this lack of cases?  Some of this comes down to the cert vote. The three liberal justices are likely to be cautious in deciding when to vote for cert. They have little chance of success in any case with ideological implications, so it is in their interest to avoid such cases entirely. This gives the conservative justices vast discretion over shaping the merits docket based on the rule that four votes are necessary for a cert grant.

One reason for fewer early term opinions is that there just aren’t as many oral arguments as there were before. In the first three months of the 2022 Term there are multiple days with only one argument. This was hardly ever the case prior to the mid-1990s. The drop in the number of October and November oral arguments since 1917 is dramatic and noteworthy as is evident below.

The dips in the argument graph are not as apparent as they are in the decision graph, and there are enough arguments to potentially yield several opinions before December in a term.

Most decisions before December in a term are per curiam or unsigned. In fact, the only current justices with signed majority opinions before December are Roberts and Alito. The following graph shows the majority authors for all signed majority opinions in cases decided before December in a term since the 2005 term.

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Part of the reason for the decrease in early term decisions may have to do with the deaths of Justices Ginsburg and Scalia along with the retirement of Justice Breyer. These three provided the most early term decisions over the last several decades.

The rise in shadow docket opinions may provide another explanation for the lack of early term opinions. There have yet to be any substantive decisions relating to orders so far this term though as most relate to cert denials. The increase in opinions relating to orders over time that take on substantive issues may be one reason for the general trend behind fewer October and November decisions.

While many opinions related to orders deal with cases denied on cert, others in past deal with substantive issues recently relating to elections, Covid-19 protocols, and other emergency actions. Still, the shadow docket is an available forum throughout the year so it should not necessarily detract specifically from the beginning of the Court’s term.

Even with the low number of signed opinions in the first two months of each term, a number of these decisions still come down to close votes. The Court has released 86 decisions in October or November of a term since 1917 with four dissenting votes. Only three such opinions were released since 2005 and one of these three was authored by a current justice. Chief Justice Roberts authored the 2008 opinion in Winters v. NRDC which was released on November 12th of that year.

This begs the question of just how quick the justices are in releasing decisions. For instance, is Chief Justice Roberts the quickest justice in churning out opinions after oral arguments and does this explain his unique position in releasing a 5-4 majority opinion in a November.

Looking across the justices’ careers on the Court, Justice Gorsuch takes the longest average time to write decisions by 2.5 days over Justice Kagan while Justice Sotomayor takes the shortest time by nine days less than Justice Thomas.  To put this in a larger context, Justice Gorsuch is the second slowest justice according to this metric in the Court’s history. The slowest was Justice Burger. We also have yet to see where Justice Jackson falls into the mix.

It is worth noting that the liberal justices are on both edges of this spectrum and Roberts who wrote some many of the more noteworthy opinions on the Court in recent years falls below the median average time between argument and decision for the current justices.

One aspect that might relate to these differences is the amount of disagreement in cases these justices authored. Dissent votes in cases is a measure of such disagreement. Majority and dissent authoring justices need to account for the opposing decisions in a case and the justices signing onto these opinions need to make sure that they agree with the decisions’ final language.

We can then look at the average number of dissents against a given justice’s majority opinions as a possible indicator that should correlate with the length of time it takes a justice to draft majority opinions. The following graph also includes justices that left the Court over the past decade.

Justice Kennedy, the swing justice from 2005 through 2017 had, not surprisingly, the most average dissents for each of his majority opinions. Kavanaugh, the new Court median, has the second most average dissents for his majority opinions.  Gorsuch, who takes the longest to write his majority opinions, comes up next. Roberts, who is in the middle for time to decision is also in the middle of this average number of dissents per majority opinion. The biggest anomaly in this graph relates to Justice Kagan. Kagan who takes the second longest to write her majority opinions has the second fewest average number of dissents for these opinions. This may relate to the complexity of the decisions in cases she authors.

The Court is, not surprisingly, moving slowly this term. It has decelerated its decision release pace across recent years as the justices have also authored fewer majority opinions during this time. The fact that these indicators of productivity are still declining is somewhat unsettling though. This comes at a time when the Court is handling more and more issues that place it in the public spotlight. Historically the Court had a larger mix of keenly followed cases along with cases dealing with more mundane issues. Now with fewer cases, many of the more mundane issues are outside of the Court’s purview.

The Court’s low number of early decision releases may also relate to the slow down the in the pace of case grants this term, which is already near a historic low, because the justices may be spending time drafting decisions that they and their clerks would otherwise spend reviewing cert petition. While we have already seen many novel things with this new Court composition, a possible upside to the greater consensus among the majority of its members on cases’ merits might be agreement in adding more cases to the merits docket. So far though the results have not provided much support for this hypothesis.

Read more at Empirical SCOTUS….

Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at [email protected]. Find him on Twitter: @AdamSFeldman.

Topics

Adam Feldman, Courts, Government, On Course, Supreme Court