[Jonathan H. Adler] Where Are the Supreme Court’s Opinions?

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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