Because the Supreme Court has a custom of publishing opinions in the same term as the oral argument on a case and the justices like to wrap up their work before July 4, June is always an active month at the Supreme Court — the legal equivalent of an everything must go closeout sale.  Because during the rest of the year, the Supreme Court issues decisions as the opinions are ready for release, the June opinions reflect two groups of cases.  First, there are the cases from late in the year — March and April primarily — for which a June decision would reflect a somewhat normal opinion pace.  Even for a unanimous decision, it takes time to write an opinion, and sixty days is somewhat the norm even for unanimous opinion.  Second, there are the difficult cases.  While sixty days from argument to opinion is a good pace when everyone agrees, if other justices want to write an opinion (dissenting or concurring) in response to the initial opinion that extends things considerably — particularly if the original author revises their draft to respond to the other opinions as sometimes happens.

This year’s caseload for June is somewhat on the high end for recent years with 29 cases still pending.  (For now the Supreme Court is just issuing cases on Monday, but, at some point this month, the Supreme Court will add additional days each week.  Needing to issue seven cases per week, my hunch is that they will go to two days per week starting June 11, but they might hold off to June 18.)  While there have been other years with more cases still pending at this point in time, what makes this year exceptional is the low number of cases decided.  The Supreme Court only had 63 arguments this year, reflecting the continued decline in accepting cases.  Of those 63 cases, two were dismissed meaning that the Supreme Court has only decided 32 argued cases this year.   As would be expected, the Supreme Court has decided most of the cases from argued between October and January — 28 decisions out of 34 cases.  Of the twenty-nine cases argued in February, March, and April, the Supreme Court has dismissed two cases and decided four cases.  Because the Supreme Court tries to balance out opinion assignments from each argument session, that means that there is some clue as to who is handling the pending cases from the first four argument sessions, but very little clue as to the last three sessions.

From October, there is only one case left and it is bigly important — Gill vs. Whitford on partisan gerrymandering.  Based on the other opinions from October, it appears that Chief Justice Roberts got the initial assignment on the case.  Normally, that would be a bad sign for those who believe that the Supreme Court has some role to play in assuring fair elections.  However, after the initial conference, the Supreme Court did accept a second case on partisan gerrymandering.  I can also see a situation in which the majority saw problems with the standard used by the panel but could not agree on what the standard should be.  That split would allow Chief Justice Roberts to assign the case to himself but could lead to a situation (like the last time that the Supreme Court considered this issue) in which there was no majority opinion.  Or the argument in the second case may have clarified issues resulting in one of the other justices now having the majority opinion. Continue Reading...