Supreme Court is turning its blockbuster docket of cases into a cliffhanger, as it’s been slow to release decisions this year and will likely cram the major cases into June, and some say Justice Neil Gorsuch might be part of the reason why.
When the justices meet for their public nonargument session Monday fresh from a two-week break, they’ll be returning to the court having decided 23 cases — the fewest cases decided by this point in the term since 1900, according to Empirical SCOTUS.
Adam Feldman, who is behind Empirical SCOTUS, attributes the slow pace in part to the acclimation of Gorsuch to the Supreme Court, who was sworn in as the newest justice last year, and a certain level of disagreement among the justices.
This term, Feldman found, there have been seven five-vote majorities in the first 23 signed decisions, the most five-vote majorities the Roberts Court has issued at this point in the term.
Dan Epps, an associate law professor at Washington University School of Law and co-host of the Supreme Court podcast “First Mondays,” agreed that Gorsuch’s presence on the bench could be playing a role in the court’s pace of releasing opinions.
“It does seem like it’s starting to become clear that Justice Gorsuch’s penchant to write is partly probably explaining part of it,” he said. “I find it hard to believe it’s explaining all of it, because he’s only one person, but we are starting to see lots and lots of separate opinions by him.”
Gorsuch’s desire to write separate opinions can “slow things down,” Epps said, since it creates another opinion for the other eight justices to respond to.
But he also noted that the number of high-profile and divisive cases the court heard early in the term could also be a driving force behind the Supreme Court’s speed.
The first case the justices heard this term, for example, examines whether class action waivers in employee agreements are lawful. The justices have yet to hand down a decision in that case, Epic Systems Corp. v. Lewis.
The Supreme Court also heard arguments in October in a partisan gerrymandering case in which the lines of Wisconsin’s legislative districts were challenged. The case marked the first time since 2004 the justices will weigh in on the issue.
They heard a second partisan gerrymandering case in March addressing a single congressional district in Maryland. During those arguments, the justices didn’t seem close to finding agreement on a way to address partisanship in redistricting.
“People are just putting a lot of energy into those and that’s sucking up a lot of the energy that would otherwise be getting out the more trivial opinions,” Epps said.
But while much attention has been paid to how slowly the court seems to be moving, Pratik Shah, the co-head of the Supreme Court and Appellate Practice at Akin and Gump, doesn’t believe the court’s pace this term is indicative of a sudden change.
“I don’t think this is some seismic shift or some big anomaly this term,” said Shah, who has argued 14 cases before the justices. “If you look at the steady trend, the court has been taking fewer and fewer cases, and with that, they’ve been taking more and more time to issue the decisions. It seems their trajectory has been fewer decisions and spending more time on each decision.”
Feldman found that prior to this term, the slowest pace for the Supreme Court with issuing opinions was last term, which began in October 2016. That term, though, the court had eight justices following Antonin Scalia’s death, which helped explain the “low output and slow pace,” Feldman wrote.
Like Epps, Shah said this term has been replete with high-profile cases, which “are naturally going to spawn multiple opinions.”
But he also pointed to the relatively light calendar for the court at the start of the term, a change from the early days of the Roberts Court when Chief Justice John Roberts would “frontload” the term with more cases in October and November. Doing that, Shah said, allowed the court to hear fewer cases in March and April and devote more time to writing opinions.
This past October and November, for example, the justices heard arguments in a total of 15 cases, fewer than the number heard in the terms beginning in October 2016 and October 2015.
“It was a combination of fewer cases in October and November, and the cases were hard, polarizing cases,” Shah said.
The Supreme Court wrapped its argument calendar for the term in April, ending with the case challenging Trump’s travel ban.
Now, the justices will devote the remainder of the term of reviewing petitions and writing opinions for the 39 cases that remain on its docket.
