Back-Loaded Supreme Court Enters ‘Flood Season’

Justice Ruth Bader Ginsburg has referred to it as “flood season.”

Ginsburg was talking about the “well-known crunch” as the end of the U.S. Supreme Court term approaches, Daniel Rubens, who clerked for the 86 year-old justice during the 2013 term, said.

The high court finished oral arguments April 24. But 40 of the court’s expected 69 opinions are still outstanding, with the term likely to wrap up June 24.

That might seem like an overwhelming amount of work to get out the door in just two months. But since the mid-1970s the court has routinely had 50 percent or more of its cases outstanding at this point in the nine-month term, according to data provided by Empirical SCOTUS‘s Adam Feldman.

“Every year the justices try to—and do—get out all of the remaining opinions” before the term closes out, said Hogan Lovells partner Colleen Roh Sinzdak. Before joining Hogan’s Appellate Practice in Washington, Sinzdak clerked for Chief Justice John Roberts.

“The Chief Justice takes the end-of-June deadline for opinions very seriously, and will start reaching out to Justices who have opinion assignments outstanding,” said Jenner & Block’s Devi Rao. Rao, who also clerked for Ginsburg, is now a partner at Jenner & Block’s appellate and Supreme Court practice in Washington.

“Around now drafts of opinions—and dissents—are flying between the Justices and law clerks and then between the Justices,” Rao said.

It’s an intense time at the court, but also very collegial, Sinzdak said.

“People are working a lot of hours on contentious issues,” she said. But there’s “a general sense that everyone is working hard for a good cause: getting the law right,” Sinzdak said.

Back Loading

This is the fifth straight term in which the court has had more than half of its opinions still outstanding at this point in the year, including last term when the court had 45 cases outstanding, accounting for nearly 60 percent of its workload for the term, Feldman’s data shows.

Still, Feldman said one reason why the back-loaded opinions seem so prominent now may be because the court is hearing fewer cases overall.

In the 1980s, the Supreme Court regularly decided upwards of 150 cases, according to the Federal Judicial Center. This term the court is expected to decide just 69 after dismissing one without issuing an opinion on the merits.

One of the main reasons for the recent downturn in caseload is that Congress gave the court more discretion over its caseload, undoing much of the court’s “mandatory jurisdiction,” which required it to take cases, Feldman said.

That fewer number of cases, combined with the fact that the highest profile cases often get kicked to the end of the term, highlight the back-loaded nature of the court’s work to an even greater degree, Feldman said.

Working Nine-to-Five?

Some of the court’s remaining workload has been lingering for a while. The justices have yet to hand down their opinion in Gundy v. United States, which the court heard way back on October 2—just the second day of the term. Gundy is a case about the division of power between the executive and legislative branches.

Other cases, though, are operating on a tight timeline.

In particular, the court heard 13 cases in April, meaning that the court will only have 60 to 70 days to turn around an opinion. The average time to opinion so far this term is 104 days, according to Bloomberg Law research.

That includes one of the most consequential cases of the term, Department of Commerce v. New York, over whether the Trump Administration can add a citizenship question to the upcoming census.

The court has some blockbusters sitting on its docket from earlier this term as well, including cases about religious symbols in public and partisan gerrymandering, as well as a significant administrative law case.

But Sinzdak says the justices will do what needs to be done to get the work done and out on time. It’s not like being a justice is a nine-to-five job, she said.

Deadline Looming

It’s not just the justices who will be working overtime.

“From a clerk’s perspective, the workload gradually picks up over the course of the term and reaches its crescendo in the final months,” Rubens, who is now a partner in Orrick’s Supreme Court and Appellate Practice in New York, said.

“When clerks arrive over the summer, many of the Justices are out of town, and the first oral arguments are still several months away,” Rubens said. “At that point, the clerks occupy themselves almost entirely with reviewing certiorari petitions and assisting with emergency applications.”

The responsibilities pick up in the fall, as the justices hear oral arguments and begin to work on opinions, Rubens said.

But things “definitely heat up at the Court close to the end of the term, as the focus shifts from oral argument to producing opinions,” Rao said.

On top of opinions, “there’s also the annual end-of-term law clerk skit in late June,” which “itself requires a huge amount of effort from the law clerks to plan,” Rubens said.

“By the last opinion day, most of the law clerks are exhausted and ready for a summer break,” he said.