SCOTUS Housekeeping

Since we’re nearing June and The Supreme Court term is slated to end on June 27th, I’ve been thinking lately about what the Court has left to do before then. Actually, there’s quite a bit of work to do.

First, there are big decisions – the Dobbs abortion case, NY Rifle gun decision, Kennedy v. Bremerton and Carson v. Makin looking at religion in schools, and (among others) Biden v. Texas looking at the Migrant Protection Protocols which returned noncitizens to Mexico during immigration proceedings.

There are 33 decisions left in argued cases out of 62 arguments this term or just over half of the cases left to be decided. Today (May 23, 2022) is the last slated day for opinion distribution this month. One could look at the SCOTUSBlog decision chart to check the decision pace of this term, but it is sometimes difficult to make sense of the data in chart form. Here are some basic statistics.

Since 1990 there have been seven terms with 35 or more cases to be decided after May in a term.  There have been four terms with 30 or more decisions left since 1997 or about 17%. The most cases left by the beginning of June since 1990 was 43 in 1991. The fewest was in 2011 when only 18 cases needed to be decided by June. There were 28 decisions left by June of the last term. The most since Roberts joined was 35 in 2017.

The Court usually saves its biggest decisions for the end of the term.  These generally come in the form of 5-4 splits. First of all, don’t expect many of these this term as the six conservative, three liberal justice composition in the Court doesn’t lend itself to 5-4 decisions. In fact, there was only one case decided by a 5-4 margin so far this term in Patel v. Garland. Gorsuch sided with the liberals in that immigration case.

Looked at comparatively, there were zero cases decided by one vote before June in 2015 and 2016 but that mainly had to do with Scalia’s vacancy (without Scalia it would have to come down to a 4-3 vote due to a recusal, and that only happened in RJR Nabisco and Fisher cases decisions in 2015).

Otherwise, there was only one 5-4 decision before June in two terms since 1990 – in 2007 and in the last term, 2020.  The most 5-4 decisions in June or later since 1990 was 13 in both the 1990 and 2012 terms. There were six 5-4 decisions in June or later during the last two terms.

One last way to think about this is by the fraction of decisions by a single vote margin in June or later in a term compared to the number of such decisions across an entire term. In 2015 and 2016 all of the decisions by that margin were in June or later in a term. In the 2017 term, 61% of the 5-4 decisions were in June or later, in 2018 it was 50%, in 2019 55%, and in 2020 (the last term) the fraction was 6 of 7 cases or 86% of the 5-4 decisions in the term came in June or later.

On Twitter: @AdamSFeldman

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