Supreme Court Off to Historically Slow Start in Contentious Term

The US Supreme Court likely won’t issue an opinion in an argued case before the justices recess for the year, in what’s already been a historically slow start.

The court, which kicks off its term in October, typically issues at least one opinion—often a unanimous one—in late-November or early December. Last year the justices handed down a 9-0 decision in a water case on Nov. 22, and the year before they issued four 8-0 rulings on Dec. 10.

Monday, however, was the last scheduled chance for the court to issue opinions in argued cases before they break for the year. They will return to the bench Jan. 9.

Supreme Court practitioners say they aren’t surprised by the court’s slow start this term, in part because of the contentious cases that the court considered during its first argument sitting. That included a major voting rights case, a potentially foundational copyright dispute, and a challenge to the EPA’s ability to regulate wetlands.

Those “cases don’t lend themselves to a December release,” said Arnold & Porter partner John P. Elwood.

Slow Start

Empirical SCOTUS creator Adam Feldman noted that the justices earlier this term set a record in failing to release any opinions by December, including cases where the justices act summarily, without hearing oral argument.

“This is the first time since the Court began its term on the first Monday in October in 1917 that the Court has not released a slip decision through the beginning of December,” Feldman wrote on his site.

A couple of factors are driving the low output.

“To begin with, the current court just has fewer Justices who really make a point of getting decisions out quickly,” Elwood said.

Goodwin partner Jaime Santos noted that Justice Ruth Bader Ginsburg “prided herself on being the first person out with an early opinion.”

“The current group just doesn’t put as much emphasis on that,” Elwood said, noting that the current court has a historically low caseload.

The justices, therefore, “know they can stay on top of their cases without pushing to get the opinions out before” the end of the year, he said.

Moreover, Santos notes that there weren’t “many easy cases in the first or second sittings that would reliably be expected to lead to a short, unanimous opinion released quickly.”

“Had the October 2022 sitting looked like the January 2023 sitting, I think we could have expected a November or December opinion,” she said, referring to the lower-profile cases the justices will consider upon their return.