What’s The Holdup In OT 2023?

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cartoon The Supreme Court architecture

Last term was supposed to be different. The Court faced the leak of the Dobbs draft opinion in May of 2022 and all signs pointed at that point to the Court’s officers expending effort to attempt to prevent such an instance from recurring. This effort in deterrence potentially slowed the decision release process for the 2022 Supreme Court term which started in October of the same year.

The Court released its first opinion of the 2022 Term in January of 2023. This was the longest the Court had ever taken to release its first opinion of the Term.  Some speculated that the leak and the efforts to prevent a similar episode in the future caused this delay.  This made sense as the Court and the investigative firm in charge of uncovering the culprit of the leak released their findings (or lack thereof) on the leak probe on January 19, 2023 and the Court released its first decision of the term in Arellano v. McDonough four days later on January 23, 2023.

That was last term. Theoretically there would be no reason for the Supreme Court to follow its slow start last term with a similar tempo this term, and yet, here we are in January 2024 with only one released decision in what reads as a glorified DIG (dismiss as improvidently granted) in Acheson Hotels v. Laufer.

The Supreme Court has shown path dependency in other areas related to its output, most notably with the number of decisions per term. While only a few decades ago the Court released close to 200 decisions in a term from argued cases, it slowly diminished this number to the approximately 60-70 decisions per term that the justices now author.  Is this approach of backloading the decisions to later in the term something to expect for the foreseeable future? All signs point to an answer in the affirmative.

Slow Start

As of the beginning of January 2024 the Court has only released a single decision and a primarily non-substantive decision at that.  One metric that conveys the Court’s pace looks at the number of majority opinions in argued cases released by a certain date marker.  Since the next expected day for opinion releases is January 9th this analysis tracks opinions by January 10th each term.  During the period and aside from last term, there is only one other term, 2017, where the justices released only one decision in an argued case at this point in the term.

The downward slope of the trajectory of decided cases in the graph showcases the Court’s approach over time. A similar finding is evident from looking at the time between arguments and decisions in cases decided by January 10th in a term starting in 1946.

With only one decision so far in the 2023 Term, the Court’s decision release rate at 62 days is based solely on the time between oral argument and decision in Acheson Hotels.  Although not quite as steep a slope as on the decision release count, the time to decision chart has a clear upward slope (shown by the trend line) that indicates the justices are now taking more time than in the past on average to release decisions.

Authorship

Who should we expect to author the next set of the Court’s decisions? There are a few ways to derive a prediction for this. The first is to look at the justices’ decision release paces based on the average time between arguments and decisions.  We need a few years of data to generate helpful predictions so Justice Jackson’s one term on the Court does not assist with this enterprise (and she did not have an opinion by the end of January 2023). The following graph shows these average times for justices on the Court since 1988, the year when Congress passed the most recent statute relating to the Supreme Court’s jurisdiction, which left certiorari as the main vehicle for the Supreme Court to take on cases.  Justices on the current Court have bars shaded green.

Justice Ginsburg was often noted as the often the fastest authoring justice in the past and this holds up in this graph as well. The shift to longer times to decision is quite evident in this figure.  Justice Ginsburg was the fastest justice since 2010 to release decisions at an average of 70.30 days. Aside from Justice Jackson, Justice Gorsuch and Kagan are the slowest current justices in their decision release paces.  Sotomayor and Thomas are the quickest on the current Court providing a hint that they might author next this term. Justice Barrett released the first opinion last term in Arrelano as well as this term in Acheson Hotels, but that means like last term, Justice Barrett is unlikely to author the Court’s second opinion of the term as well.

Another way to look at who might author first is based on which justices authored the first decisions each term. This graph tracking the authors of the first three majority opinions each term (or more if several decisions were released on the same day for the third decision of the term) goes from the 2010 which was the year Justice Kagan joined the Court through the previous term. This keeps the number of terms captured relatively low but encompasses only a few justices that already left the Court by death or retirement.

This graph correlates with the previous one showing that Justices Sotomayor and Thomas authored the most of these opinions since 2010.  Justices Gorsuch, Kavanaugh, and Jackson do not even make it on this graph and the other justices are less likely on the balance to author the Court’s next majority opinion.

Concluding Thoughts

In his year-end report released on December 31st, 2023, Chief Justice Roberts described the downsides of the artificial intelligence craze along with a few positive elements.  Like his line relating judges to umpires in his confirmation hearings, Roberts emphasized the enduring importance of the human element in judging in the report.

Roberts wrote,

“I predict that human judges will be around for a while. But with equal confidence I predict that judicial work—particularly at the trial level—will be significantly affected by AI. Those changes will involve not only how judges go about doing their job, but also how they understand the role that AI plays in the cases that come before them.”

Only time will tell if Roberts’s predictions are accurate.  The justices, however, might do well to look to new technologies that can accelerate the writing process.  While AI may not yet or ever be a substitute for judges, it surely can enhance the writing process which judging by the justices’ speed in delivering decisions, might be just the catalyst that this Court needs.


Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at adam@feldmannet.comFind him on Twitter @AdamSFeldman and on LinkedIn here.





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