The Least Productive Supreme Court Ever?

The justices hear fewer cases and decide fewer questions than they used to.

The Supreme Court is on track to decide the fewest number of cases after oral argument in over 150 years. Despite the reduced workload, the justices are behind this term, having issued opinions in just over half of the 62 argued cases. We will get more opinions tomorrow (Wednesday) morning, but the justices will have to pick up the pace if they are to finish before the July 4 holiday, as is traditional.

There may be extenuating circumstances behind the Court's slow pace this term -- the pandemic, shadow docket filings, and (of course) the Dobbs leak, to name a few. But the Court's declining speed and productivity seems to be something of a trend. Idneed, as data Adam Feldman put together suggests, this may be the least productive Supreme Court ever. As Feldman notes, last year the Court "decided the fewest number of cases on oral argument since the Civil War," and they will decide even fewer this year.

From Feldman's post on EmpiricalSCOTUS:

Since the number of oral arguments has dropped since 2017, presumably the Roberts Court's average is even lower than that shown in the graph. The Court's lack of productivity is also evident in the following graph (based on cases orally argued derived from the Supreme Court Database) showing how it hit a modern day low last term when the Court decided the fewest number of cases on oral argument since the Civil War.

Based on the historical evolution of the Court's institutional power and legitimacy, the Court's diminished modern day merits docket implies that not only is the Court less productive now than it was before, but that it currently may be the least productive Court ever.  There was no expectation that the Court would decide a baseline number of cases each term in the mid-1800's. Once the Court began hearing 150 to 200 cases a term in the mid-20th century though, the expectation became that the Court would continue to do so. Obviously, the Court has not followed this course.

More from Feldman:

With 53% of cases undecided by the beginning of June 2022, the Court has had its least productive term through the second to last month of a term since the Court's calendar moved to October through June.

Other indicators similarly reflect the Roberts Court's lack of productivity.  Based on the preceding graphs it should not be surprising that the Court's current majority opinion output is the lowest it has been since the Civil War. The following graph shows the average annual number of majority opinions in orally argued cases released by Court Era. . . .

The Court has drastically changed its shape over time. The justices are deciding some of the most politically charged and publicly important cases ever this term, dealing with issues such as abortion, gun control, and border policies. On the other hand, the Court only heard 63 arguments this term which is below the average number of arguments even during the Roberts Court years. The graphs above convey that this Court's current productivity is the lowest that it has been since the 1800s and since the Court was only in a nascent stage at that point, the Roberts Court is arguably the least productive Court in history.   This trajectory is unlikely to change anytime soon.

The Court is deciding fewer cases, hearing oral argument in even fewer, and taking longer to decide them (such that we began this June with over half of this term's cases still undecided). This serves no one's interests.

It is possible that some justices think the Court should decide fewer questions so as to intrude less into the political sphere. I understand the impulse, but it is counter-productive. The Court continues to decide cases concerning political subjects, and (as the docket shrinks) those cases become a larger share of the Court's work. Thus, the Court with a smaller docket comes off as a more interventionist institution than it would were it taking the time to resolve more circuit splits and provide greater clarity in unsettled areas of law.  Whether or not this is the reason the Court is hearing fewer cases, the justices should seek to undo this trend.