I have not had as much to write about the U.S. Supreme Court this term as in previous terms, because this term is moving at a snail’s pace. There were 63 cases argued by the end of April (the end of the hearing calendar). To date, there have been only 23 decisions announced, and 6 summary reversals.
This means there are 34 cases argued that will be decided between Monday and the end of June, including all of the major cases pending before the court this term. (h/t SCOTUSblog).
Adam Feldman analyzes at SCOTUSblog, Empirical SCOTUS: Out of steam or out of time:
For those following the Supreme Court, the notion that the court is moving slowly this term has already been reiterated multiple times. The first clear notion of the court’s historically slow pace came with the timing of this term’s second signed decision, which was the modern court’s latest second opinion released in a term. Other analyses followed in legal periodicals, as well as those directed at a more generalized audience. Now that we are closer to the end of the term, some aspects of the justices’ decision-making this term are more apparent, as are explanations for the court’s pace. The bottom line is that this pace should not be unexpected, because the court has been moving in this direction for years, and a confluence of events have now come together to help precipitate this term’s “snail’s pace.”
A view from 10,000 feet
First, a look at the court’s relative pace so far this term. This helps to show where the court’s progress this term fits into context with other terms. It also clarifies how the court is still moving at its slowest pace in modern history at least by several metrics … [The chart below] shows the court’s number of signed decisions through April of each term since 1900.
The slowest pace previously was (not surprisingly) last term. Last term, the lack of a ninth justice helped to explain the low output and slow pace. This year, the court has two other, related explanations: inertia, and the acclimation of a new ninth justice. The inertia explanation may be apparent from [the] graphs above or from the Federal Judicial Center’s various graphs of the court’s opinion output by term.
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Due to a voting pattern similar to those of the other right-wing members of the court, Gorsuch appeared to be the second most conservative justice last term. Because he only voted in a handful of cases last term and, unlike the rest of the justices, had no prior voting history, his relative position was only a best-guess approximation.
If Gorsuch were as predictable a conservative vote as Thomas and Justice Samuel Alito, perhaps the court’s pace this term would not have been as slow. Just looking at Gorsuch’s votes in signed decisions, though, he is currently more toward the court’s center. In fact … based on his voting alignments in all signed decisions in which he participated, Gorsuch’s voting behavior is most similar to those of Chief Justice John Roberts and Justice Anthony Kennedy.
Gorsuch’s distance from the court’s liberals clearly still aligns him with the more conservative justices, but possibly not as much as one might have previously expected. Specifically, Gorsuch helped muddy up previous expectations of his voting alignment with his opinion in Sessions v. Dimaya giving the court’s liberal wing a five-justice majority.
In reality, this has been a muddy term for the Supreme Court as a whole, and this might be hampering the court’s output. As the graph below shows [not shown], the Roberts court has never had as many majority decisions through April with a minimum number of justices in the majority as it has this term.
This term in context
This level of disagreement among the justices may well have slowed down their decision-making. The difficulty of finding consensus is also apparent in other ways. This is the only term since Roberts joined the court in which the court has had four different justices assign a majority opinion through April.
This too shows the shifting majorities in the court and underscores the complexities of the justices’ alignments so far this term.
This is not the only sign of the complications in the court’s decisions so far this term. The court is also taking a particularly long time between oral arguments and decisions. This is clear from the court’s average time between oral arguments and decisions through April by term.
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This stems in part from the time the court took between oral argument and a decision. With Kennedy’s decision in Jesner v. Arab Bank, a case argued early in October, the court took the longest time under Roberts to reach a decision in a case decided through April of a term since 2005.
The Court released its decision in Jesner, along with several others, on April 24. From the perspective of the calendar year, this is the latest point in any year under Roberts that the court has released its 23rd opinion.
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Before the court’s decision in Jesner, not all the justices had written a majority opinion. If we look at how late into the year it was before all the justices had authored a signed majority opinion, this year far surpasses every prior term under Roberts.
Signs from Roberts and Kennedy
This brings us back to the court’s center, at least ideologically. Kennedy and Roberts tend to author majority opinions in many of the court’s most divided decisions. They appear to be saving up reserve energy for an end-of-the-term push. Along with the 2013 term, this is the only other in which Kennedy and Roberts only wrote one majority opinion each of the court’s first 23.
This is also the latest date in a Roberts-court term that both justices released their first majority opinion — Jesner for Kennedy and Hall v. Hall for Roberts.
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This is the first term in which Roberts released his first majority decision in March.
And now for synthesis: The Supreme Court was already on a slow trajectory in previous terms, and this term fits the pattern. The court’s pace this term is also a product of diverse opinions among the justices and the difficulty of reaching consensus. These complexities may be augmented by where Gorsuch fits into the equation and his voting proximity to Kennedy and Roberts. To the extent that the justices are getting a sense of the court’s new composition, some of the output backup may be rectified moving forward. To the extent that the court is institutionally slowing down its work and that the justices have frequent significant vote splits, this trend will continue and may intensify before it abates.
The court’s calendar lists order days for May 14, 21 and 29. There are four more Monday orders days in June, and typically the court will add additional orders days in June.
It’s time to tighten the chin-strap on your helmet for the fourth quarter, because decisions are about to come at you fast over the next several weeks. You will want to catch the SCOTUSblog live blogging on Monday mornings for decisions being announced.
