Two Decisions Down And Fifty-Eight To Go

The Supreme Court released two decisions on January 23 to kick off its merits opinion releases for this term. One was a unanimous decision in Arellano v. McDonough, a case about the effective date of an award of disability compensation to a veteran of the United States military which was authored by Justice Barrett while in the other, the Court dismissed as improvidently granted (DIG) the case In Re Grand Jury about whether a communication involving both legal and non-legal advice is protected by attorney-client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication. This DIG left the lower court decision in place.

Earlier this year, I wrote about how the Court waited longer than it ever has in U.S. history to release the first opinion of a term from an orally argued case.  Now we are two decisions in with 58 undecided cases from the Court’s oral argument slate.  Since the Court’s next plausible opinion release day is February 21, 2023, I based the analysis in this post on that release date. That date marks 141 days since the first oral argument this term on October 3, 2022.

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How does this timeframe compare with the Court’s historic opinion releases?  Issuing opinions in two of 60 total cases equates to 3.33% of the Court’s caseload for the term leaving 96.67% of the Court’s caseload to go.  Now for the analysis. The graph below shows the Court’s percentage of cleared, orally argued cases 141 days into a term dating back to 1850. (Note that the Court’s docket was sufficiently small prior to 1850 such that there is a lot of unnecessary noise in the graph if I included prior years due to the percentage changes from each cleared case.  Still, no percentage prior to 1850 was as high as the current term’s percentage of the docket left to clear.)

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This term’s percentage of cases to go is approximately 3% more than the Court had left in 2017 and 4% more than the Court had in 2019 at this point in the term. In absolute numbers though, the Court cleared twice as many cases (four) in both 2017 and 2019 at the same point in the term as we sit currently with only two decided cases.

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The 58 orally argued cases to clear though is nothing compared to some past terms. In 1982, the Court still had 132 cases to clear at this point in the term and 131 cases in 1975. The Court had 88% of orally argued cases to decide 141 days into both of the above mentioned terms though due to the terms’ larger caseloads.

In 2019, the four cases decided within the first 141 day marker were Rotkiske v.Klemm, Peter v. Nantkwest, Retirement Plans Committee of IBM v. Jander, and Ritzen Group v. Jackson Masonry. In 2017, the four cases were Hamer v. Neighborhood Housing Services of Chicago, Artis v. District of Columbia, National Association of Manufacturers v. Department of Defense, and District of Columbia v. Wesby.

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Since the Court was able clear many more than 58 cases after the 141-day point of many terms in the past and still complete the terms on time, Justice Kavanaugh’s prediction that the Court will clear its caseload this term will most likely come true. Still, the slow movement of case decisions will probably continue until the term’s end.  As the Court typically saves more decisions for June than for any other month each term, we will probably see the bulk of opinion releases in June 2023 as well. If that turns out to be the majority of decisions this term, then be prepared for only a smattering of decision releases between now and then, and for most if not all of the heavily anticipated decisions to stay undecided until June.

Read more at Empirical SCOTUS….

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

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