Supreme Court Workload Backloaded as Justices Hear Fewer Cases

Much of the US Supreme Court workload is increasingly bunching up toward the end of the term due to fewer cases, puzzling petition timing, and a glut of separate opinions, creating a backlog that advocates say could be the new norm.

The justices have so far granted more than two dozen cases to be heard in their upcoming term, a handful short of the number needed to fill the court’s first three argument sittings in October, November, and December. For a court that’s hearing around 60 cases a term, that’s a significant share of the workload pushed back.

The slow start means the justices will have to make up the deficit, creating a domino effect when hearing more cases later in the term means more opinions will stack up at the end, too. That’s typically in late June, but last term slipped to early July.

There’s been a pattern in recent terms in which the court hears relatively few cases in the early sittings, said Perkins Coie partner Michael Huston. The “effect of that pattern has been to see several ‘backloaded’ terms.”

Crunched Period

Huston said relatively slow starts might be explained in part by the court’s briefing schedule.

The court’s rules contemplate approximately 115 days from when a case is granted to when it is argued—45 days for the initial brief, 30 for the response, 30 for the reply, and at least 10 days for the justices to review the briefs.

Because the court takes a summer recess from approximately July to October, that means any cases to be argued in the fall must generally be granted from mid-January to the end of the term. That’s right when the court is the busiest, preparing for oral arguments and drafting opinions.

That could help explain part of what Justice Elena Kagan described as the “unfathomable” timing of when the Supreme Court agrees to take up new cases. In July, she told a group of lawyers and judges that “for whatever reason” the court grants cases that must be scheduled for the last argument sittings in March and April.

“It’s a very crunched time period,” Kagan said, adding that the decisions in those cases aren’t realistically going to come down until the last days of the term, when the court is busy handing down its most consequential rulings.

The most contentious cases take longer because there is “a more prolonged back and forth between the majority and the dissents,” said University of Virginia law professor Saikrishna Prakash.

‘Big’ Cases

But the court’s procedures and practices have been in place for a long time “so it wouldn’t explain recent variation,” said Goodwin partner Brian Burgess.

He pointed to the court increasingly taking more noteworthy cases, many of which generate separate opinions, as a potential explanation for the recent end-of-term crunch.

“There seems recently to have been an increase in the proportion of ‘big’ cases compared to run-of-the-mill” ones, Burgess said. “Big cases invite more opinions, and those opinions take longer to write” and create bottlenecks, he said.

The number of concurring opinions has gone up in recent terms, according to data compiled by Adam Feldman, of the blog Empirical SCOTUS. The percentage of total opinions that have been concurrences has fluctuated between 25% and 34% between 2017 and 2023, according to Feldman.

The justices last term penned more concurring opinions, 62, than majority ones, 59, accounting for almost 40% of total decisions issued in argued cases, a Bloomberg Law analysis showed.

“There is a lot of separate writing that the court is doing right now,” Kagan said in July.

And those separate opinions have gotten longer. The average length of a concurring opinion has ballooned from 815 words in the court’s 2016 term to 2,155 words last term, according to statistics compiled by Feldman and University of Florida political science professor Jake Truscott.

All that can “stretch out the issuance” of opinions and make the end of the term hectic, Prakash said.

Fewer Cases

Consovoy McCarthy partner Taylor Meehan noted another factor—the court’s steadily decreasing number of grants.

“Paradoxically, that decline in the court’s merits cases could also explain the court’s slower pace,” Meehan said. With fewer cases, the court has more time for lengthier opinions, she said.

Like concurrences, majority and dissenting opinions have also become longer, according to Feldman and Truscott’s statistics.

Majority opinions have grown by nearly 800 words since 2016 to just over 5,000 words and dissents have more than doubled in that same period to around 5,900 words.

If the court returned to hearing 75 or so cases, as it did a decade ago, the justices would probably pick up their pace, Meehan said.

“But if the slow pace of grants for the upcoming term is any indication, I don’t expect we’ll see a return to old numbers anytime soon,” she said.