WASHINGTON – The Supreme Court has never been so slow.
For the first time, judges have not resolved cases in which they have heard arguments in more than three months since they began their term in early October.
By this point they had always decided at least one case, and usually a handful, according to Adam Feldman, creator of the Empirical SCOTUS blog.
But autumn turned to winter without decisions, and not even a three-week holiday hiatus produced any published opinion.
The next opportunity comes on Monday before the judges take another almost four-week break.
The court hasn’t offered an explanation, but there are several possibilities: a personnel change with Justice Ketanji Brown Jackson joining the court, less consensus over a deeply divided bench, and the aftermath of leaking a draft opinion last term in the case, the one Half an overturned century of abortion rights.
Although their opinions were not productive, the judges’ questioning of the attorneys was robust, with Jackson being the most vocal questioner in the court’s arguments, Feldman found.
“If the volume of speech is related to the amount of writing we’ll find in her opinions and opinions she’s signing, that could also affect the pace,” Feldman wrote on Twitter.
The gap between the six conservative and three liberal judges is becoming increasingly apparent in decisions. The last term produced more 6-3 results than unanimous decisions, which typically make up the largest proportion, according to statistics compiled by Scotusblog.
That term, too, seems likely to evoke its share of sharp disagreements over the consideration of race for college admissions, the right to vote, the right to vote, and a dispute between religious and gay rights.
Cases where more than one judge drafts an opinion, be it dissent or approval, take longer than those where the court is unanimous.
In 2018, on November 6, then-Judge Ruth Bader Ginsburg delivered the court’s first advisory opinion in a case disputed 36 days earlier. “Rapid Ruth,” as Ginsburg jokingly called himself, was the court’s fastest clerk. Ginsburg passed away in 2020.
Last year almost 30% of the decisions were unanimous and it is likely that some cases this term will lead to the same result.
This is where Judge Samuel Alito’s opinion on the abortion case, leaked in early May, could come into play. It’s possible, and perhaps even likely, that the judges have changed some of their internal practices to reduce the likelihood of an opinion leaking out. Any changes could increase the time it takes to finalize a decision.
Judge Sonia Sotomayor is the youngest of nine members of the nation’s highest court to rule on the June decision that overturned nearly half a century of abortion rights.
Sotomayor answered a simple question from Berkeley Law School Dean Erwin Chemerinsky, who moderated an event with the Judiciary for the American Association of Law Schools. After the momentous decisions of the last term in office, Chemerinsky asked: “How are you?”
Sotomayor appeared to be focusing on just one of the term’s big, conservative-leaning cases, which also included expanding gun and religion rights and curtailing the Biden administration’s efforts to combat climate change. Sotomayor disagreed in all of these cases.
“If you’re asking how this momentous decision affected me, my wording would have varied from day to day,” Sotomayor said. “Sometimes I was shocked. Other times I was just deeply saddened. And many times I have despaired of the direction my judgment was taking.”
But ultimately, she said, she felt she had no choice but to persevere. “But I realized that there is no way to fall victim to despair, that I have to stand up and keep fighting,” she said.
The event took place in early January and the association posted a video online.
Other judges have spoken about the damage to the court they believe the leak has caused. Judge Elena Kagan spoke several times over the summer and fall about the dangers of viewing the court as a political body.
Sotomayor appeared virtually for the Law School Association event, but she was among the court’s most frequent travelers before the coronavirus pandemic changed everything.
It was only then – Judge Antonin Scalia, who died in 2016 – that she competed when she left Washington, she said.
Judges are to report their trip, if someone else is paying the bill, in an annual disclosure made available to the public.
But Fix the Court, a monitoring group, has found gaps in reporting for Sotomayor and other judges.
The group on Tuesday sued the Justice Department under the federal Freedom of Information Act over records of judges’ trips. The US Marshals Service, part of the Justice Department, regularly provides security when judges leave town.
Fix the Court is targeting records from 2018 to 2022. Two previous lawsuits and requests for information under state public records statutes revealed trips that were unreported by the judges, as well as additional details of some trips that were.
In 2016, Sotomayor made six trips funded by public universities, which she initially skipped. Finally, she updated her report for this year.