The Volokh Conspiracy

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Supreme Court

How Far Behind Is the Supreme Court?

We will get opinions on Monday, but the Court will have to average more than two opinions per day to finish before July 4.

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The Supreme Court will issue opinions on Monday. This will be the first opinion day in June, and (as I noted on Tuesday) the Court has quite a few cases left to decide. The Court has yet to issue opinions in thirty-three of the cases argued this term, and there are only 14 potential decision days left before the July 4 holiday.

Just how far behind is the Court? Greg Stohr has a story today for Bloomberg digging into this question.

The court is due to issue 33 opinions, a whopping 53% of its expected total in argued cases, as its 2021-22 term comes to an end in the next month. Among those will be rulings that could effectively render abortion illegal in two dozen states and mean more handguns on the streets.

The historic backlog — the biggest in percentage terms since at least 1950, according to empiricalscotus.com founder Adam Feldman — comes as the justices and their law clerks deal with an investigation into the leak of a draft opinion overturning the Roe v. Wade abortion-rights ruling. All told, it's a formula for what could be a momentous and rancorous final month. . . .

As I noted on Tuesday, there are multiple factors that likely contributed to the backlog: Covid (including Covid-inspired litigation), the high proportion of contentious cases (on an otherwise small docket), the increased number of "shadow docket" filings and orders, and the unprecedented leak of a draft opinion in Dobbs and resulting investigation. Were that not enough, the Court asked for supplemental briefing in the "Remain in Mexico" immigration case in April.

It is true that the Supreme Court has begun June with over thirty cases to complete and still ended on time, but will that happen this year? Here's what Adam Feldman wrote last month:

Since 1990 there have been seven terms with 35 or more cases to be decided after May in a term.  There have been four terms with 30 or more decisions left since 1997 or about 17%. The most cases left by the beginning of June since 1990 was 43 in 1991. The fewest was in 2011 when only 18 cases needed to be decided by June. There were 28 decisions left by June of the last term. The most since Roberts joined was 35 in 2017.

Of course one difference here is the smaller docket. In 2017, for instance, when the Court had a larger docket, there was a greater proportion of "easy" cases that could be disposed quickly. We're also now a few days into June without opinions, and every day counts.

It is certainly possible that the Court could issue opinions in all of the remaining cases on or before July 1, but I have my doubts. As much as the Court would like to keep on schedule, I think a combination of factors will prevent that from occurring this year.