261 Days to Gundy

Gundy v. United States was argued back on October 2, 2018. Since it was decided today, it took the justices 261 days since oral argument to render a judgment in the case. The main question in the case was whether the federal Sex Offender Registration and Notification Act’s (SORNA) delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the non-delegation doctrine.  The Court affirmed the Second Circuit’s judgement which held it is not an unconstitutional delegation of authority for Congress to specify that the Attorney General applies SORNA’s’s registration requirements as soon as feasible to offenders convicted before the statute’s enactment.

The decision was from a plurality of the Court with Kagan authoring the judgment joined by Sotomayor, Breyer, and Ginsburg. Alito concurred in the judgment but not with the reasoning of the justices in the plurality. Gundy marks the first time that Alito sided alone with the more liberal justices on the Court and consequently the first time that he has been a tie-breaking vote in their favor.

Since 1960, the Court previously took more that 245 days to decide 31 cases within a term. 261 days is the third greatest amount of time for a decision in a case argued in the same term. Below are these previous cases and the time between oral arguments and the Court’s decisions.

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Decisions that run this length of time since argument are far from the norm.  A distribution of the Court’s orally argued cases since 1960 shows how frequently the justices wait this long to release the decision in a case.

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The remaining analyses with data from the United States Supreme Court Database show ways we can think about similarities in these decisions. The most common vote breakdown, for instance, was 5-4. The 5-3 anomaly in Gundy is due to Kavanaugh’s recusal because the case was argued before he started his work on the Court.

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The predominance of close votes in these cases should not be surprising, as one reason why a case may take so long to decide is for the voting coalitions to form. This very possibly played a role in the time it took for the Court to decide Gundy.

These cases cluster into several issue areas, but most fall under civil rights.

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When we look at the set of cases that took the longest times to decide, most were decided while Burger was Chief Justice.

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Burger also authored more of these decisions than any other justice since 1960.  Kennedy authored the most of the justices who sat on more recent Courts.

Gundy is the third such case decided under Roberts.  With Gill last term and now Gundy this term, it will be interesting to see whether these lengthy periods of deliberation are a new trend for the Roberts Court.


On Twitter: @AdamSFeldman

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