Justices Staring Down Another Slow Term Despite Head Start

The U.S. Supreme Court is on track for another historically slow term.

The justices have teed up 47 signed opinions so far with just two more opportunities to add cases to the argument docket. That puts them on track to match or slightly exceed last term’s 53 opinions—the lowest number since the Civil War.

The court is well below the 74 signed opinions in argued cases it has averaged since Chief Justice John Roberts took the helm in 2005, according to Adam Feldman, the creator of the blog Empirical SCOTUS.

The “combination of COVID and the usual delay for a new justice” is probably behind this term’s low numbers, said Williams & Connolly partner Sarah Harris.

Although those factors might dissipate, “there is an inertia effect” that’s likely to keep the numbers low in the foreseeable future,” Feldman said. “It becomes the new normal.”

Cascading Effect

The addition of new justices may be behind part of the slowdown in recent terms.

From 1994 to 2005, the court’s membership didn’t change. But since 2016, it has sat for an extended period with eight justices and added three members since 2017, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

New justices can slow things down because the court will typically hold off deciding major issues until the new member is confirmed, Harris said.

Even after a justice has been seated, the other eight may wait to get a better sense of their new colleague’s jurisprudence before strategically granting contentious cases, Feldman said.

Covid-19, too, is also a factor. The court postponedarguments in March and April amid social distancing restrictions that forced closure of the court to the public and ushered in remote arguments.

The court set approximately half of them for a special session in May—the reason for the dramatic drop in signed opinions last term. The remaining 10 cases were pushed to the current term that started in October.

That delay likely “had a cascading effect on the court’s work,” Harris said.

The justices largely stopped granting cases for a time following the announcement that it would postpone the March argument sitting, Feldman said. From mid-March through the end of the term in July, 15 cases were granted compared to an average of almost 27.

Election, Speech

The court can still add cases to this term’s docket. Due to the months-long briefing schedule, the cutoff for that is mid-January.

The justices have two private conferences between now and then where they’ll decide which new cases to add. Potential additions include the Pennsylvania GOP’s attempt to invalidate absentee ballots received after Election Day in Republican Party of Pennsylvania v. Boockvar.

The justices declined to take up the case before the state certified its election results, meaning the decision wouldn’t affect the outcome of the 2020 presidential election.

But Republicans said that was a reason for granting the request—namely, to answer the question before it could affect another election.

At issue is whether a state court can extend the deadline to receive absentee ballots—in the face of the pandemic—or whether that can only be done by the state’s legislature.

There are also three First Amendment issues that the justices could agree to hear this term.

The first, Americans for Prosperity Foundation v. Becerra, challenges a California law requiring non-profits to identify their major donors.

The second, Trump v. Knight First Amendment Institute, asking if public officials—President Donald Trump—can block followers from a personal Twitter account.

The third is Mahanoy Area School District v. B. L., testing the reach of school disciplinary actions to off-campus speech.

Finally, the bribery conviction of former longtime New York State Assembly Speaker Sheldon Silver could be set for argument this term.