By many metrics, and even by the Court’s standards, the Supreme Court has been quiet so far during the 2016 Term. While the Court has naturally taken fewer cases over recent years (exponentially fewer if we look back over the preceding decades), there is context for the most current muted effort.
Much of the Court’s unwillingness to take on a substantial caseload or to take on controversial cases relates to the vacant seat on the Court leaving an even number of Justices whose views are split across much of the political terrain. Commentary on the Court’s inaction has characterized the current Term as bland to say the least (e.g. USA Today, Bloomberg View, Bloomberg BNA, Slate). These decisions by the Court have led to various post-hoc explanations, both optimistic and pessimistic. Views about the Court’s decisions and the Court’s future also tend to correlate with commentators’ ideological postures (especially related to views about the Senate’s handling of Judge Garland’s nomination to the Court). Below are a few details that we know for certain.
Slow Grant Pace
Even though the Justices granted more cases as the year went on, the Court is still on its slowest pace for granting cases in recent memory.
Even with the six cases the Court granted in December, the Court is five cases behind its pace from last year at this time and well-behind its paces in recent years.
First Five Decisions
The Court decided five cases by written opinion so far this Term. This is a sign of normalcy as it parallels closely to the Court’s output at this point in the Term in years past. With respect to actual output though, the Court’s opinions are the thinnest in recent memory. One way to look at this is by total word count in the first five signed opinions (including separate opinions related to these signed majority opinions) over the last several years.
The Court has clearly had a diminished output in this respect as the word count is at a lower rate than it has been in any year since 2010 by well over 1,000 words. We can also break this down into individual opinions.
The majority opinion in Bravo-Fernandez this Term is much longer than the rest at 7,014 words (the top right circle in the figure). Without this opinion, the word count for this Term’s opinions would be substantially lower.
This Term has also seen serious gridlock in the setting of argument dates in a small set of cases. Usually the turnaround between the Court granting cases and setting argument dates is a few months at most. This Term, however, there are several cases that were granted almost a year ago which have yet to be slated for oral argument. The figure below shows the cases accepted for argument this Term that have sat without a scheduled argument for the longest amount of time.
The figure makes evident that the delay in setting an argument date for Microsoft v. Baker, Murr v. Wisconsin, and Trinity Lutheran Church of Columbia v. Pauley, all granted on January 15, 2016 is striking compared with the other most delayed cases this Term. Of the other cases granted in January the Court already heard arguments in Manuel v. City of Joliet and already rendered a decision (and heard arguments) in Salman v. United States.
Change on the Horizon?
Along with the idiosyncrasies of this Term there is evidence that the Court will fall back into some of its old patterns. Although lines are already drawn in the sand regarding many peoples’ perspectives surrounding the handling of the Garland nomination, with a new nominee likely in the near future the Court has more certainty about the direction it might take in terms of new cases and how it may decide cases already granted. The Court will almost certainly veer back in a conservative direction both in the types of cases it grants and in its decisions.
With the December grants there is also evidence of the Court’s willingness to pick up additional cases to fill its docket before the end of the Term. The Court is not only looking at “dull” cases either as these grants make clear. In somewhat of a surprising move the Court granted to hear the case of Gloucester County School Board v. G.G., which examines transgender restroom policies and already which made a lot of noise earlier this year. The Court will also hear a dispute that with large implications for patent law with Impression Products v. Lexmark Int’l among other cases.
None of this is to say that the Court will approach its output of recent years or will take on cases of similar tenor, but it does show the potential for a different approach in the new year. The more significant change, and likely return back to the Supreme Court of old will not likely take place until a ninth Justice is seated and since this is unlikely before the end of the 2016 Term, the Justices’ current decision-making approaches may well continue through the end of the Term.
On Twitter: @AdamSFeldman