A Few Orders, But Where Are the Opinions?

With thirty-three opinions in argued cases yet to issue, the Supreme Court is well behind the usual pace.

The Supreme Court issued orders today, denying certiorari in a raft of cases, temporarily staying the mandate of a Third Circuit decision in a Pennsylvania election dispute, denying a petition for a stay to prevent Texas legislators from having to testify in a voting rights suit, and (perhaps most notably) vacating the Fifth Circuit's stay of a district court order enjoining Texas's social media law, 5-4, in NetChoice, LLC v. Paxton (about which Eugene, Will, and Josh have posts below). Yet somewhat unusually for the day after Memorial Day, the Court issued no opinions.

Despite the relatively spare docket, the Supreme Court has issued opinions in argued cases at the slowest rate in at least a decade. Eight months into the term the Court has issued only 29 opinions in argued cases. There is one month left (assuming the Court sticks to its traditional schedule), and there are thirty-three argued cases to go.

Normally the Court tries to finish up its work by the end of June, but that is looking ever less likely this year. It would be quite something for the Court to average over eight cases per week between now and July 1, but I doubt we can expect that. There are only twenty-one potential opinion days in June, and yet no hand-down days have been announced.

What accounts for the delay? Perhaps the Court is still somewhat slowed by Covid. Perhaps justices and their clerks have been diverted by the high volume of applications and orders on the "shadow docket." Perhaps the high number of contentious high-profile cases has slowed things down. Some have speculated that the recent mass shootings in Buffalo and Uvalde prompted rewrites in the much-awaited gun rights case. Perhaps there are shifting coalitions in one or more cases that kept them from being issued.

I would not be at all surprised if the unprecedented leak of a draft opinion concerning the future of abortion rights in Dobbs is part of the reason for the Court's slow pace. The disclosure of Justice Alito's Dobbs draft almost certainly shattered trust among and between the justices and their respective chambers. The draft's disclosure, followed by the continued leaks of information from within the Court, has likely made the justices more reticent about sharing drafts, distributing memos, or trying to negotiate changes in opinions.  What justice wants to propose a compromise that might end up in the Wall Street Journal? Who wants to distribute a path-breaking opinion if a rough draft will be fly-specked on Twitter?

One would expect a breakdown of trust within the institution to affect the Court's internal functioning and deliberation, so it may have contributed to the Court's slow pace. Add to that, the justices and their clerks are also now subject to investigation, leaving less time and attention for the Court's work.

Whatever the cause, the Court has been unusually slow to issue opinions this term. There are many important cases left to decide, and not much time before the Court's traditional summer break.