Slow Justice: What’s Been Holding Up SCOTUS Opinions?

The Supreme Court announced that it will finally issue opinions in argued cases Monday, Jan. 22. They will be just the second round of opinions issued so far this term—the slowest pace since the 1800s.

So what’s been holding up the high court?

The Supreme Court is notoriously secretive, refusing to announce the reasoning behind some of its most consequential decisions, including sometimes even how the justices voted.

Court watchers are therefore often left to speculate as to what is going on behind the scenes.

Maybe it’s the newest justice—Neil M. Gorsuch—gumming up the works.

Bloomberg Law research reveals that the court’s work doesn’t typically slow down with the entrance of a new justice—at least not since Chief Justice John G. Roberts Jr. took the bench in 2005.

The court didn’t see a noticeable slow down at the beginning of Justice Samuel A. Alito Jr.’s first full term in 2006, or Justice Sonia Sotomayor’s or Elena Kagan’s in 2009 and 2010 either.

But the new justice has shown an inclination to go his own way.

He announced early in his tenure that he wouldn’t join the court’s cert. pool, the informal mechanism by which the justices sort through the thousands of petitions they receive every term. So perhaps he’s not being shy about writing dissenting or concurring opinions detailing his personal views of cases, which would certainly slow down the opinion process.

Or perhaps it’s not just Gorsuch, but all the justices who can’t seem to get on the same page. A lack of unanimous opinions could also hold up opinions.

SCOTUS practitioner Pratik Shah has a theory of his own.

The “Court had an unusually light October (9 argued cases) and November (6 argued cases),” Shah said. “On top of that, those sittings (October in particular) had a high portion of significant cases in which multiple opinions (which obviously delay the process) seem likely.”

“Since those sittings provide the pool for early opinions, the fewer number of opinions to date is not altogether surprising,” Shah said.

“In light of that factor, I think it is too early to predict an unusual level of division among the Justices or lack of unanimity this Term,” he added. “And I’m skeptical that Justice Gorsuch’s presence explains the delay; after all, Justice Scalia (whom he replaced) was not shy about writing separate opinions.”

Whatever the reason, the drought will end Monday. As to which opinions we’ll get that day, the Supreme Court won’t say.