Out of Steam or Out of Time

For those following the Supreme Court, the notion that the Court is moving slowly this term has already been reiterated multiple times.  The first clear notion of the Court’s historically slow pace came with the timing of the Court’s second signed decision which was the modern Court’s latest second opinion released in a term.  Other analyses followed in legal periodicals as well as those directed at a more generalized audience.  Now that we are closer to the end of the term, some aspects of the justices’ decision making this term are more apparent as are explanations for the Court’s pace.  The bottom line is that this pace should not be unexpected as the Court has been moving in this direction for years and the proper confluence of events have come together to help precipitate this term’s “snails pace.”

A View From 10,000 Feet

First, a look at the Court’s relative pace so far this term. This helps to show where the Court’s progress this term fits into context with other terms. It also clarifies how the Court is still moving at its slowest pace in modern history at least by several metrics. The top chart shows the Court’s decisions in cases taken by writ of certiorari through April of each term since certiorari became the main and preferred method of the Court’s jurisdiction in 1925.  The bottom chart shows Court’s number of signed decisions through April of each term since 1900.

 

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Whether with the 22 opinions this term in figure 1 or the 23 opinions this term in figure 2 the Court is four signed decisions behind its slowest pace in either graph.  The slowest pace previously was (not surprisingly) last term.

Last term the Court had the added explanation of a missing ninth justice to help explain the low output and slow pace. This year the Court has two other, related explanations: (1) inertia; and (2) the acclimation of a new ninth justice.  The inertia explanation may be apparent from both graphs above or from the Federal Judicial Center’s various graphs of the Court’s opinion output by term.

Fitting a New Justice in the Mix

When Justice Gorsuch joined the Court, early analyses dubbed him the “New Scalia.”  The reason for this description was readily apparent. Justice Gorsuch sided overwhelming with the conservative members of the Court and perfectly aligned with Justice Thomas when he participated in cases during the 2016 term.  This also led him to a very conservative ideological score for the term based on the justices he aligned with on merits votes most frequently.  The justices’ relative ideological positions for the 2016 term are shown below with their Martin Quinn Scores (liberal scores are to the left and conservative ones are to the right).

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Due to Gorsuch’s similar voting pattern to the other right wing members of the Court, Gorsuch appears the second most conservative justice on the Court. Since he only voted in a handful of cases last term and had no prior voting history unlike the rest of the justices, his relative position was only a best guess approximation.

If Gorsuch was as predictable of a conservative vote as Thomas and Alito, perhaps the Court’s pace this term would not have been as slow.  Just looking at Gorsuch’s votes in signed decisions though, he is currently more towards the Court’s center.  In fact, as the graph below shows, based on his voting alignments in all signed decisions in which he participated, Gorsuch’s voting behavior is most similar to those of Justices Roberts and Kennedy.

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Gorsuch’s distance from the Court’s liberals clearly still aligns him with the more conservative justices, but possibly not as much as one might have previously expected.  Specifically, Gorsuch helped muddy up previously expectations of his voting alignment with his opinion in Dimaya giving the Court’s liberal wing a five justice majority.

In reality this has been a muddy term for the Court as a whole and this might be hampering the Court’s output.  As the graph below shows, the Roberts Court has never had as many majority decisions through April with a minimum number of justices in the majority as it has this term.

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Since the Court has had only eight members vote in a handful of cases over the years including many decisions after Scalia died and before Gorsuch joined the Court, 5-3 splits are included in the above graph as well.

This Term in Context

This level of disagreement among the justices may well have slowed down their decision making.  The difficulty in finding consensus is also apparent in other ways.  This is the only term since Chief Justice Roberts joined the Court where the Court has had four justices assign a majority opinion through April of a term.

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This too shows the shifting majorities in the Court and underscores the complexities of the justices’ alignments so far this term.

This is not the only sign of the complications in the Courts decisions so far this term.  The Court is also taking a particularly long time between oral arguments and decisions.  This is clear from the Court’s average time between oral arguments and decisions through April by term.

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This is apparent in the above graph where the Court’s average pace through April is head and shoulders above any other term in the Roberts Court years.  Some of the explanation for this has to do with the longest time the Court took between oral arguments and a decision.  With Justice Kennedy’s decision in Jesner, a case argued early in October, the Court took the longest time under Chief Justice Roberts to reach a decision in a case decided through April of a term since 2005.

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The Court released its decision in Jesner along with several others on April 24th. In the perspective of the calendar year, this is the latest point in the year under Chief Justice Roberts that the Court has released its 23rd opinion.

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This figure though does not account for the fact that the term does not start on the exact same day every term.  Based on close proximity of position of this years 23rd opinion with other term’s 23rd opinions, this year’s place marker does not appear a great anomaly in this respect.

Prior to the Court’s decision in Jesner, all justices had not written a majority opinion.  If we look at how late into the year before all justices authored a signed majority opinion this year far surpasses every prior term under Chief Justice Roberts.

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Signs from Roberts and Kennedy 

This bring us back to the the Court’s center at least ideologically.  Justices Kennedy and Roberts tend to author majority opinions in many of the Court’s most divided decisions.  They appear to be saving up reserve energy for an end of the term push.  Along with the 2013 term, this is the only other where the Justices Kennedy and Roberts only authored one majority opinion each of the Court’s first 23.

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This is also the latest date in a term that both justices released their first majority opinion under Chief Justice Roberts – Jesner for Kennedy and Hall for Roberts.

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The only other time Justice Kennedy released his first majority opinion in April was in his first term in 1987 (with Bethesda Hospital v. Bowen). Rather than starting  on the Court at the beginning of the term though, Kennedy only started two months earlier in February.  This has been the first term in which Justice Roberts’ released his first majority decision in March.

And now for synthesis…The Court was already on a slow trajectory in previous terms and this term fits the pattern. The Court’s pace this term is also a product of diverse opinions among the justices and the difficulty in reaching consensus. These complexities may be augmented where Justice Gorsuch fits into the equation and his voting proximity to Justices Kennedy and Roberts.  To the extent that the Justices are getting a sense of the Court’s new composition, some of the output backup may be rectified moving forward. To the extent that the Court is institutionally slowing down its work and to the extent that the justices have frequent significant vote splits, this trend will continue and may intensify before it abates.


On Twitter: @AdamSFeldman

 

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