Supreme Court

Where Are the Supreme Court's Opinions?

The Supreme Court is releasing opinions at the slowest rate in over a century.

|The Volokh Conspiracy |

Some Supreme Court watchers were hoping the justices might return from their winter break with a few opinions in decided cases. No such luck. This morning, when the Court convened for argument, it released orders from last week's conference, but no new opinions.

Thus far this term, the Supreme Court has issued only one opinion in an argued case, a brief unanimous opinion by Justice Ruth Bader Ginsburg in Hamer v. Neighborhood Housing Services of Chicago. While we don't ususally see a ton of opinions in the first half of a term, this is the slowest rate in a long, long time. According to data compiled by Adam Feldman at Empirical SCOTUS, the last time the Supreme Court did not issue a second opinion in an argued case until January was 1869.

To be fair, the Court has issued a few per curiam opinions in cases that did not receive oral argument. There are four listed on the Court's opinions page. In addition, there have been a few opinions related to orders as well. (These are usually dissents from denials of certorari and things like that.) It's also fair to note that the Court has quite a few weighty cases on its docket, and has been asked to intervene repeatedly in the "travel ban" cases. All this could be slowing things down. Nonetheless, it seems notable that the Court has yet to produce more opinions.

Does the Court's slow pace auger anything significant? Perhaps. One possibility is that the justices are unusually divided in an unusual number of cases, and this is slowing the pace of opinion issuance. Unanimous opinions are often quicker to produce than divided decisions. When the Court is divided, the justices may go back-and-forth responding to each other's drafts. It's also possible that the Court is having trouble producing majorities in an unusual number of cases, and the delay reflects ongoing negotiations over case resolutions. Or maybe the clerks have been binge-watching old sitcoms on Hulu.

Whatever the cause, the Court's slow pace means there will be some catching up to do—and this means a particualrly busy spring for those of us who like to watch the Court.

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  1. It is difficult to wake the Notorious RBG.

    1. I’m suspecting that. But you’d think her clerks would be able to just handle the load; Do Supreme court justices have auto-signers?

      1. Do they have calculators?

        My idea is that Roberts is struggling with some arithmetic problem and can’t quite get it.

        1. It’s all gobbledygook anyway.

  2. Suggestion: Write shorter opinions. Write far fewer concurrences.

    1. What problem would that solve? Or address?

      1. It would produce opinions faster. The longer the opinion, the longer it takes to write and edit and to get agreement.

        Its also just a good idea.

        1. I’m still not clear on what problem that addresses? But I can think of a couple problems it might create, such as “The unintended consequences of ‘short-sheeting’ legal opinions.”

          1. “I’m still not clear on what problem that addresses?”

            The post is about slowness in opinions being revealed.

            One of the reasons may be the lengthy, lengthy opinions being drafted with cite checking, editing, circulation to other justices for agreement and comment, re-circulation of revisions.

            Shorter majority opinions with fewer concurrences [and/or dissents] means those processes are sped up so opinions are released sooner.

          2. The problem of lawyers & law profs needing biz, of course.

          3. Bob from Ohio: “The unintended consequences of ‘short-sheeting’ legal opinions.”

            Can’t argue with that. Wait. Yes I can. The longer and more involved an opinion is, the more opportunity there is for new and unintended possibilities to creep in. These /will/ be exploited by counsel down the road. It also makes legal reasoning that much less transparent to ordinary citizens.

            FWIW. I’m just being a troublemaker today.

        2. I would be totally down with this – opinions should fit on one page, 11 pt Times New Roman. Carriage return after each paragraph.
          Though not for pace reasons – with a certain sort of person, brevity can take a while. Judges are heavily drawn from those sorts.

          But clarity would go way up. At the price of fun going down, but I’m willing to pay that price.

          1. Sarcastr0: “with a certain sort of person, brevity can take a while.”

            Blaise Pascal: Je n’ai fait celle-ci plus longue que parce que je n’ai pas eu le loisir de la faire plus courte.

            trans: (referring to the letter he is writing) “I have made this longer than usual because I have not had time to make it shorter”)

    2. Also write far fewer dissents. I realize that could severely limit Thomas’s and Alito’s ability to cite prior Sup. Ct. cases, but that’s not a bad thing.

      1. Dissents at least serve some purpose, though they should be shorter and only one per case.

        1. Dissents should be in Q&A format. Limited to 2 pages.

          1. Dissents should take the form of Fisking the majority opinion.

            1. File system check? Or some other Fisk?

            2. Dissents should just say “FYTW.”

              It’s basically all people do when “arguing” online.

              Sources? Precedent? Nuance?

              We don’t need no stinkin’ nuance.

  3. “Or maybe the clerks have been binge-watching old sitcoms on Hulu.”

    I suspect that they do most of their binge-watching on Netflix. Damn you “Friends!”

    1. Perhaps, but Hulu comes free with discounted student Spotify accounts.

      1. If they’re watching, I hope it’s Breaking Bad, The Wire, Game Of Thrones, Married With Children, Saturday Night Live, MASH, All In The Family, Mad Men, In Living Color, and The Simpsons.

        That should be enough to get them through a clerkship.

  4. John Roberts is not a uniter.

    1. Does he need to be?

      1. A unified Court can’t hurt with our political divisions, and might help.

        1. But the weird opinions let me talk about Marks v United States, thus temporarily appearing to be intelligent.

        2. “A unified Court can’t hurt with our political divisions, and might help.”

          So would shooting every other Senator at random. Both are equally unlikely.

          How do you get unified decisions when you have 3 wings? Liberal, Conservative, Kennedy.

          The S/C has not been unified since the New Deal consensus broke down and [perceived] ideology became the reason for appointments.

          1. Good lord. How did you suppose the New Deal consensus was forged in the first place, if not by rigid ideological appointments?

            1. @Brett,

              That’s quite true, rigid ideological appointments created the New Deal consensus on the Supreme Court.

              The problem is that since then, neither side has had control of both the white House and the Senate for long enough to either create or maintain that sort of consensus.

      2. I suppose there is economic activity that results from decisions that are 4-2-1-2, and if everything were 9-0 or 8-1, the dark money might give up. But being a lawyer I have a vested interest in perpetual legal warfare over questions with no right answer, so maybe I’m not the best to ask.

        1. Could not post the links (technical issue) but unanimous decisions over the past decades are increasing.
          Can this be attributed to Roberts?

          1. Obviously I refer to only his time on the court. It would be hard to say that his court is bucking that trend.

        2. Everyone works to protect and perpetuate their profession. One of my professors joked, “nuclear engineering is basically just paying tens of thousands of dollars to learn obscure words.” That resonates with me. Very little required aptitude greater than a middle school student.

          Now I use those obscure words, too, because I don’t want anyone to take my job without having to pay tons of money. I also don’t want anyone to know that I have no idea what I’m doing most of the time.

    2. Nor should he be

  5. Bear in mind that the Tacit Constitution limits the Court to a maximum 40-hour work week.

  6. Wouldn’t theory predict a monotonic decrease of the rate of new decisions over time as precedents get established? Would the enactment of new legislation (“…and of half the litigation I’m undoubtedly the cause.”) be enough to keep pumping that back up?

  7. What opinions are they not issuing? Are we missing out on good opinions or bad ones?

    1. Eidde: “Are we missing out on good opinions or bad ones?”

      I’m reasonably certain that we will be divided about that when it comes to “Masterpiece Cakeshop v. Colorado Civil Rights Commission.”

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