Is the Court Falling Behind?

The Court has been criticized for releasing only four opinion going into the winter break and Linda Greenhouse even suggested that internal wrangling over Citizens United may have “sucked the air out of the term.” Maybe so, but the Court has done nothing publicly to suggest that this term is progressing differently from any other. In fact, last year, the Court had only released two substantive opinions in argued cases and DIG’ed another. In OT07, the Court had released five opinions going into the winter break. In OT06, the Court had released four opinions and DIG’ed one case. To recap, here are the number of decisions on argued cases:

Term # Cases Chief Justice
OT09 4 Roberts
OT08 3 Roberts
OT07 5 Roberts
OT06 4 Roberts
OT05 8 Roberts
OT04 9 Rehnquist
OT03 6 Rehnquist
OT02 7 Rehnquist
OT01 7 Rehnquist
OT00 7 Rehnquist

The Roberts Court’s trend towards releasing opinions late in the term is well-documented and commentators should not be surprised to see only four opinions heading into the winter break. The biggest counter to this argument is the fact that the Roberts Court has been making an effort to load the docket with cases during the first few months in an effort to soften the inevitable end-of-term rush to finish opinions. I’m not sure packing cases early would have a huge impact on decisions being released before Christmas although I do think there could be an increasingly large number of opinions released during February and March.

With all of that in mind though, Citizens United should be considered late. Capitol Hill is waiting for the decision and campaigns around the country are treading lightly in anticipation of the option. The Supreme Court’s delay will only extend the period of uncertainty.


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