The U.S. Supreme Court is moving at a sluggish pace this term, and even after issuing five decisions yesterday, it’s still operating slower than any other Supreme Court since 1900. Though some critics blame a complicated and divisive workload, others are increasingly pointing to Justice Neil Gorsuch as the culprit for delayed judicial action.
The Supremely Slow Court
On the 225th day of the 2017 Supreme Court term, even after issuing five new decisions during a high-output day, the nine justices who make up the Supreme Court have only decided 27 cases. Dan Epps, an associate law professor at Washington University School of Law and co-hosts a podcast covering the SCOTUS, believes that Gorsuch can “slow things down” by writing so many separate and individual opinions.
“It does seem like it’s starting to become clear that Justice Gorsuch’s penchant to write is partly probably explaining part of it,” he said, adding that every time Gorsuch writes an opinion, other justices are compelled to issue a rebuttal. “I find it hard to believe it’s explaining all of it, because he’s only one person, but we are starting to see lots and lots of separate opinions by him.”
Adam Feldman, who writes a judicial blog called Empirical SCOTUS which examines “contemporary and historical Supreme Court issues at an empirical level,” believes that a contentious court is to blame. He points to seven five-vote majorities in the first 23 signed decisions, the minimum consensus needed to form a majority.
By the time cases reach the Supreme Court, plaintiffs have often waited years to appeal complicated legal decisions and are seeking justice that lower courts were unable to amend. Therefore, the court’s slow-as-molasses approach to litigation may be a source of immense aggravation for complainants.
The justices have yet to provide a legal ruling, or holding, in Epic Systems Corp. v. Lewis — the very first case heard by the Supreme Court in their 2017 term. Their decision has the potential to impact thousands of workers and dozens of businesses since the case will examine the legality of class action waivers in employee contracts, and whether or not these agreements are enforceable under the Federal Arbitration Act.
Additionally, the justices are reportedly consumed by a pair of partisan gerrymandering cases. The first of these, in Wisconsin, could represent the first time that the Supreme Court addresses political redistricting since 2004. In March, the justices refused to hear Republican arguments seeking to block the implementation of a new, court-ordered district map in Pennsylvania which heavily favored Democrats.
Also in March, the court heard yet another gerrymandering case, this time regarding the boundaries of a single district in Maryland. Unfortunately, the judges were unable to reconcile their opinions and reach an agreement, leading some legal commentators to suggest that the justices are too concerned by the issue.
“People are just putting a lot of energy into those and that’s sucking up a lot of the energy that would otherwise be getting out the more trivial opinions,” said Epps.
A snail’s pace
Other observers do not believe that the court’s grueling pace is a sign of a systemic change within the institution. Pratik Shah, the co-head of the Supreme Court and Appellate Practice at Akin and Gump, contends that the federal court system has been moving in this direction for years. The appellate attorney, who has tried 14 separate cases before the justices, explained his theory:
I don’t think this is some seismic shift or some big anomaly this term. If you look at the steady trend, the court has been taking fewer and fewer cases, and with that, they’ve been taking more and more time to issue the decisions. It seems their trajectory has been fewer decisions and spending more time on each decision.
The justices have yet to render holdings in more than half of the cases they have heard this term, and with 34 decision left on the docket, they are going to have to rapidly accelerate their output if they plan to complete their appointed duties before the end of the term.
When considering the slow-motion litigation characterizing this term, Epps and Feldman fail to account for the record-setting number of obstructionist injunctions issued to reverse President Donald Trump’s executive orders. The Supreme Court has been forced to overrule lower courts and leftist judges multiple times regarding the travel ban executive order alone. Lower federal courts have also interfered regarding deadlines that the president set for the controversial Deferred Action for Childhood Arrivals, and Justice Gorsuch was even instrumental in preventing Trump from expanding the definition of violent immigrants which could be deported by siding with liberal justices.
Whoever is to blame for the judicial dilly-dallying, the Supreme Court is going to have to pick up the pace if they are going to stop the collaborative effort of liberal judges to legislate from the bench to resist the president’s agenda. The stakes are too high.