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Supreme Court waiting game for term’s first opinion sets record 

With another blockbuster slate of cases before them, the justices appear to be in a holding pattern. 

WASHINGTON (CN) — The Supreme Court did not shy away from dealing itself another historic docket of cases this term but so far the justices are making history for what they aren’t doing: handing down rulings. 

This is the first time in the high court’s history that the justices have yet to release an opinion in an argued case four months into the term, said Adam Feldman, a Supreme Court scholar and creator of the Empirical SCOTUS. It’s also the first time in 100 years the court has not released a slip decision through November of a term. 

“It's a really stark difference from anything in the court's history,” Feldman said during a phone interview. “And obviously court won't say — or the justices won't say publicly — why it's taking so long. So we have to kind of peel back layers a little bit and try to come up with some reasons.” 

The first opinions of the term are usually in cases where agreement between the justices is easiest, and therefore the court’s early opinions are usually unanimous. In the past, sometimes as many as a quarter of the court’s rulings come out unanimous. While unanimous decisions are not a guarantee, it would be highly unusual to not see any. 

“We are almost guaranteed to have a quarter or more of the opinions come out unanimous, and we’ve never seen anything in recent years where it's been less than a quarter are the opinions unanimous,” Feldman said. “With that history we are likely to see some unanimous opinions, and so it's definitely odd that we aren't seeing anything come out yet.”

Not only are the opinions in argued cases lacking this term, but the court has not issued any unsigned opinions yet either. Per curiam opinions, as they are known in Latin, resolve cases summarily and are usually given in cases the court has not argued. It could be assumed that the lack of need for arguments makes these the easiest for the justices to hand down. 

“We usually see them not more than a month out from the beginning of the term,” Feldman said. “We haven't seen any of those either. So if we’re looking not only at argued cases, it's even more of a disparity than we've seen in the past.” 

It’s no secret that the ideological divide between the justices is vast this term, and this could be one of the reasons opinions are taking longer to write. Besides getting the majority to come together on how the court’s ruling should read, it’s possible we could see more separate opinions this term. The justices could be more inclined to write concurring and dissenting opinions, which not only take more time to write but also have to be circulated to all the justices so their opinions have a chance to respond to anything that is written. 

The court’s history could also provide clues. Over the last century, rulings during the beginning of the term have been slowly declining. 

“There's a trend here, where it's not like out of the blue they're taking longer, but the rate of increase this term over past terms is significant,” Feldman said. “So there is a greater than normal difference, even though that normal was becoming slower.” 

The more recent past may be a bigger indicator, however, of why the court has been historically slow this term. Last year the court’s biggest ruling was leaked to the press. The justices deemed the release a breach of trust at the usually tight-lipped institution, and Chief Justice John Roberts opened an investigation into who could have been at fault. It’s still unclear to the public where the leak originated, but it’s possible the justices are taking extra precautions now that their inner sanctum has been tarnished. 

While looking to history can discern the pace of past rulings, there is a new variable on the court this term: Justice Ketanji Brown Jackson. Felman’s research has tracked both the time during which rulings are usually handed down as well as how long each justice takes to write their rulings. On the current court, Justice Sonia Sotomayor has the fastest opinion writing time while Justice Elena Kagan takes the longest. 

It’s not yet clear where Jackson will fall on this spectrum, but if her record-breaking oral argument speaking time is any indicator, it is safe to bet anything she writes will be very detailed. Jackson — who as a junior justice has spoken more than any justice on the court this term — tends to ask precise questions. It’s possible Jackson’s attention to detail seeps into any majority opinion she joins and leads to a longer editing process. 

Tracking another record break at the Supreme Court is not only noteworthy for court watchers, but it could give an indication of how the institution itself operates. 

“I think that there's been a slowdown in the court’s efficiency over time,” Feldman said. 

As the wait for the first opinion of the term grows, so does the gap between when the court hands down its decision after an argument. The court is also hearing fewer arguments than it has in past terms. Of the cases the court does decide to take up, the issues are trending toward more blockbuster rulings. Just last term the court handed down major rulings on abortion, guns, religion and executive authority

Taken together, these trends show the court taking on fewer issues with larger consequences. The result is a bigger spotlight on the court’s work. 

“I think that the court’s dealing with fewer issues, but they're dealing with some really salient issues,” Feldman said. “So that gets kind of thrust in the public spotlight more because there's just such so much importance to each case that you're hearing fewer and fewer of these cases that kind of go under the radar.”

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