Tom Petty could be singing to Supreme Court-watchers this term, “The waiting is the hardest part.” On Monday, the justices handed three more opinions, leaving 24 to go on its current docket. Yet, this release contained no bombshells; none of the cases on gerrymandering, religion, the U.S. Census, or a host of other important litigation. Instead, all three concerned technical and narrow questions of statutory interpretation.
The big decisions will come. The Supreme Court only has two more weeks left before its normal conclusion at the end of June.
But the waiting should make us ask: What’s holding them up? Why are so many important opinions still not out? Of course, we don’t know for sure. We the public get to see the results, not watch the process. However, there are a few possibilities that might explain the backlog.
Eight Ain’t Great
The Supreme Court began its current term on Oct. 3 with only eight justices (Justice Brett Kavanaugh joined the court nearly a week later on Oct. 9). In that interim, the court heard two cases that still have not come out. With eight justices, the chance of a deadlocked 4-4 tie always exists. One of those cases, Knick v. Township of Scott, PA likely was tied. We can guess so because the court ordered the case re-argued in January so that Kavanaugh could participate.
Get a Word In
Sometimes justices can agree on who should win a case but not why. The other remaining October case, Gundy v. United States could be such an instance. This litigation concerned whether Congress wrongly gave the attorney general too much power to decide who was and who wasn’t subject to a new law regarding registered sex offenders. Should that case be decided based on whether Congress gave up legislative power to the attorney general? Or is it more of an issue of due process, denying someone the proper legal procedures? Based on the case’s oral arguments, the court could be fighting over the grounds for deciding this case as much as what to decide.
You’re Only As Old as You Write
Even with the additions of Justice Neil Gorsuch and Kavanaugh, the Supreme Court as a whole isn’t young. Justices Ruth Bader Ginsburg and Stephen Breyer are both over 80 years old. Justices Clarence Thomas and Samuel Alito are both around 70. It is true that clerks do a lot of work for the justices both in researching and in writing drafts. But, in the end, the opinions are the justices’ own. Listening to oral arguments, they all seem sharp intellectually. Thus, age may not affect the quality of the opinions. However, perhaps it might be affecting the pace of the court’s output.
Too Close for Comfort
Ginsburg recently made remarks to lower-court judges implying deep division on unreleased cases. Such 5 to 4 votes can take extra time. To have a majority opinion, a justice must get at least four colleagues to sign off on what he or she wrote. Doing so can involve a lot of back-and-forth, especially when the issue is contentious and the precedent it sets particularly important. Even the dissenting opinions may take a lot of time, with the justices composing them knowing they can influence how far the majority is followed in the future. A number of remaining cases could fall under this one, including the census case, the Maryland cross case, and Gamble v. United States.
We Like Drama
Finally, the Supreme Court has a flair for the dramatic. It often seems to give out its most publicly watched opinions toward the very end of the term. Some of that may stem from the above factors. But, we can also attribute it a bit to keeping us waiting until the end. Obergefell v. Hodges, the case requiring the states to recognize same-sex relationships as marriages, was handed down on the anniversary of other notable decisions regarding gay rights.
We likely will never know exactly what takes the Supreme Court so long on particular cases. But until they come out, guessing may make waiting a little less hard.
Adam Carrington is assistant professor of politics at Hillsdale College.
