Today was another big day at the Supreme Court. Among the four merits opinions released, we got a very interesting summary reversal in Ryburn v. Huff and a landmark opinion in U.S. v. Jones, the GPS-tracking case. Unfortunately, I haven’t been able to plow through the latter yet, but I hope to get through it by the end of the day.
As you all have no doubt noticed, the Court has been releasing opinions at a blistering pace during the first half of October Term 2011. During the Roberts Court, the Court has not released more than 19 merits opinions by the end of the January sitting. This year, however, the Court released 21, including a blockbuster (U.S. v. Jones) and a mid-major (Perez v. Perry). The Court is likely to release another mid-major, Florence v. Board of Freeholders, during the February or March sittings.
With the steady flow of opinions, the Justices have all been busy putting out opinions on a number of hot-button issues. One Justice, however, has yet to author even a single majority, concurring, or dissenting opinion: Justice Kennedy. In some ways his silence is surprising–the Court has disposed of nearly a quarter of the cases it will likely decide during OT11 and Justice Kennedy is nowhere to be seen. On the other hand, he tends to write most frequently in high-profile, divided cases and therefore it takes more time for the Court to produce his opinions. Ultimately, however, compared to Justices Scalia and Ginsburg, who have authored eight and seven opinions, respectively, Justice Kennedy’s silence seems especially notable. Let’s take a look at how all of the Justices have fared during OT11.
Despite his silence up to this point in the term, I have little doubt that Justice Kennedy will leave his mark on the term by the end of June. With so many landmark decisions pending, it seems likely that Justice Kennedy with write more than a few noteworthy majority, concurring, and dissenting opinions. He has also traditionally written a low number of total opinions–last year only Chief Justice Roberts and Justice Kagan authored fewer total opinions. I suspect that we will see a similar trend during the current term. But when Justice Kennedy writes an opinion, he certainly makes it count for something.