For the first time in its history, SCOTUS has gone over three months without handing down a single decision.
Adam Feldman, a Supreme Court scholar, and creator of the Empirical SCOTUS, notes that It’s also the first time in 100 years the court has not released a slip decision through November of a term.
“It’s a really stark difference from anything in the court’s history,” Feldman said during a phone interview with Courthouse News. “And obviously, the court won’t say — or the justices won’t say publicly — why it’s taking so long. So we have to kind of peel back layers a little bit and try to come up with some reasons.”
A slip opinion is a printed judicial opinion that is released by a court on the day that the decision is rendered, but it is not the final form of the opinion because it is still subject to typesetting, formatting, and revisions to the text.
In any case, the next opportunity for an opinion is Monday, before the justices take a four-week vacation, according to the Associated Press, which points out that there could be several reasons for the delayed opinions.
In the past, the first opinions of the SCOTUS term are usually in cases where agreement between the justices is easiest, and therefore the court’s early opinions are usually unanimous. This occurs in nearly a quarter of the cases.
While unanimous decisions are not a guarantee, it would be highly unusual to not see any. “We are almost guaranteed to have a quarter or more of the opinions come out unanimous, and we’ve never seen anything in recent years where it’s been less than a quarter are the opinions unanimous,” Feldman said.
However, this court is sharply divided, with six conservatives and three liberal justices. Last term produced more 6-3 outcomes than unanimous decisions, which typically make up the largest share, according to statistics compiled by Scotusblog.
This term, too, seems likely to produce its share of sharp divisions over the consideration of race in college admissions, voting rights, election law, and a dispute between religious and gay rights.
This means that the justices could be more inclined to write concurring and dissenting opinions, which not only take more time to write but also have to be circulated to all the justices so their opinions have a chance to respond to anything that is written.
And we must not forget that last year the court’s biggest ruling was leaked to the press. The justices deemed the release a breach of trust at the usually tight-lipped institution, and Chief Justice John Roberts opened an investigation into who could have been at fault. It’s still unclear to the public where the leak originated, but it’s possible the justices are taking extra precautions now that their inner sanctum has been tarnished.
“I think that the court’s dealing with fewer issues, but they’re dealing with some really salient issues,” Feldman said. “So that gets kind of thrust in the public spotlight more because there’s just so much importance to each case that you’re hearing fewer and fewer of these cases that kind of go under the radar.”
