The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Supreme Court OT2023 at the End of May
The justices have been slow and quite agreeable -- so far.
Today the Supreme Court issued three more opinions, bringing the total number of decisions to 29 so far this term (out of 61 argued cases). This is a slower pace than usual for the Court, despite the smaller docket, but on par with what we saw last term.
Here is the number of opinions issued by the end of May this year as compared with the total in each of the prior five terms:
- OT2023 - 29
- OT2022 - 29
- OT2021 - 33
- OT2020 - 39
- OT2019 - 36
- OT2018 - 44
The relative slowdown is noticeable. What's the cause? One possibility is that whatever processes the Court adopted in the wake of the Dobbs leak have slowed down the Court's work. Another possibility is that the remaining cases are sufficiently difficult or divisive that they are taking more time to complete. Whatever the cause, the Court will have to average a decision a day to finish its work by the end of June.
While the Court has been relatively slow to issue opinions, it is showing a surprising degree of unanimity. The justices have been unanimous in the judgment in 20 of the 29 cases decided thus far, including today's unanimous decision by Justice Sotomayor in NRA v. Vullo, siding with the National Rifle Association against New York financial regulators. Of the remaining nine cases, two were decided 7-2 and seven were decided 6-3. Of potential interest, only three of the 6-3 decisions issued thus far split the Court along traditional conservative-liberal lines. In two of those three cases the majority was written by Justice Alito (Thornell, Alexander). Justice Kavanaugh wrote the opinion in the third (Culley).
There are good reasons to think that the Court's will be less unanimous -- and perhaps more conservative -- than what we have seen so far this term, and not just because the Court tends to issue the most controversial and politically divisive decisions at the end of the term. So far this term, the liberal justices have authored a disproportionate share of the Court's opinions (thirteen of twenty-seven signed opinions), despite representing only one third of the Court. Based on what we have seen thus far, the Court's liberals are likely to have relatively few of the remaining majority opinions.
In terms of individual opinion authorship, here is where we stand.
- Sotomayor: 6
- Kagan: 4
- Alito: 3
- Kavanaugh: 3
- Barrett: 3
- Jackson: 3
- Thomas: 2
- Gorsuch: 2
- CJ Roberts: 1
There have also been two per curiam opinions, and some cases are likely to be merged into a single opinion (e.g. the two Chevron cases, Relentless and Loper-Bright will almost certainly be decided in a single opinion).
Given that the Court heard argument in 61 cases, each justice will only have six or seven decisions, so Justice Sotomayor may be done with writing majority opinions this term, and Kagan and Jackson may only a few each left. Of the thirty-ish opinions to come, I think we can expect over two-thirds of them to be written by one of the Court's conservatives. The Chief Justice in particular has been holding his powder dry, having only taken one decision for himself thus far. Do not be surprised if he writes for the Court in both the Trump immunity case and the Chevron cases.
