The Supreme Court is now less efficient according to multiple measures. Since the Court released its first decision in an orally argued case this morning, Monday January 23rd 2023, the 112 days between the first oral argument and the first opinion of this term set a new record for the longest time this has ever taken the justices. It’s not only an aberration that the Court took 112 days to release an opinion, but also that it took 112 days to release a unanimous decision in Arellano (a predictable first opinion of the term) since the Court should have moved more swiftly especially without any separate opinions.
Now that the the Court released its Investigative Report regarding the Dobbs leak with a follow up from Marshal Gail Curley stating that the justices were questioned but were not asked to sign affidavits, we can surmise that this process hampered the Court’s ability or at least slowed down the process of releasing an opinion.
If we look all the way back to 1791 though the Court has never taken anywhere near as long to release its first opinion in an argued case. Although defining the Court’s first argument in a term is tricky in the Court’s earlier years due to a more haphazard argument schedule, if we track the first argument by looking at the first that is in a sequence of multiple days with arguments then the graph since 1791 looks as follows.
[Note: The timeframes for all periods before this term were supplied by the U.S. Supreme Court Database]
The Court was never previously close to this 112 days marker that it took this term to release its first opinion.
Other metrics also point to the Court’s less efficient process. Even though the Court did not have fewer signed opinions in argued cases last term than it had in the few terms previous to it, the Court still issued almost 40 fewer opinions last term than it has averaged across its history. If you add to this that the Court heard many fewer cases closer to its inception and focus on the 20th century forward, than this difference from the average is even more pronounced. Looking through the end of last term the number of opinions issued in argued cases looks as follows:
Finally, the Court is taking longer intervals between oral arguments and decisions on average. If we look at the average time between arguments and decisions per term you will see the increase in the number of days over time.
Sure, one might argue that the Court now issues more separate opinions than in the past, and separate opinions slow down the process, yet this increase is still quite stark if you account for the number of fewer opinions that the Court now releases when compared with the past.
When taken together all three metrics show how the Court is now less efficient than it has been in the past. Perhaps then the slow release of the first opinion this term should be less surprising. Still the fact that it took over a month longer to release the first opinion this term than it has ever taken in the past shows just how slow the Court is currently moving. Whether impacted by internal or external events or procedures, or just a less efficient process, these cumulative measures do not bode well for the productivity of the Court in the near future.