April 16, 2007
Assessing the slow SCOTUS pace
Over at SCOTUSblog, Tom Goldstein has this new post entitled "The Pace of the Court's Decisionmaking." Here are excerpts from an interesting read:
One possible explanation for the falloff in output that I considered was that the Court is taking longer in its internal deliberations in an effort to produce greater unanimity, which is an expressed goal of the Chief Justice. That may indeed be occurring; until we see the opinions released later in the Term, there is no way to know for sure. But the numbers so far do not suggest a trend towards greater unanimity. At this point last Term, of the post-argument decisions, 17 were unanimous and 3 were 5-4; this Term, 6 are unanimous (far fewer) and 5 are 5-4 (more)....
From outside the building, there is no obvious cause for the Court's slowed decisionmaking. The best guess from my perspective is that there is a natural transition that comes with the change in the Court's composition, including its leadership. Before the addition of two new colleagues, the Justices (who had sat together for more than a decade) could write with great confidence in where the rest of the Court would come out and what it would find acceptable. Now there is naturally more hesitancy and perhaps there are more and longer exchanges between the chambers. The topic receives attention at all, perhaps, only because of the reduction in both cert. grants and written opinions in a single Term.
It bears stating that the Court's reduced output has had no adverse consequences. No decision is pending in an urgent matter. And the Supreme Court still issues rulings faster than almost any other court. No one doubts that the Justices will decide this Term's cases before the summer recess begins in July.
Though I think some defendants sitting in federal prison might disagree with the assertion that no decision is pending in an urgent matter, Goldstein's sober analysis helpful highlights that the Court's slower pace this Term is likely of little long-term consequence.
Some recent related SCOTUS posts:
April 16, 2007 at 09:42 AM | Permalink
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That is a ridiculous statement that no one is harmed. While the percolation approach to dealing with issues might make sense in some areas of law, letting important criminal law and procedure issues "percolate" endangers virtually everyone's ability to comply with the onerous penalities of U.S. law.
Indeed, since the decision invalidating the sentencing guidelines, virtually every Circuit Court of Appeals has essentially ignored the thrust of the opinion, while the Supreme Court fiddles and allows the issues to percolate. While there may be punishment for the Nifong's of the world who ignore the law, Circuit Court judges routinely ignore Supreme Court precedent unless it is explicitly spelled out to the last jot and tittle, all the while letting defendants rot in jail.
And if that doesn't bother conservatives out there, maybe the failure of virtually every Circuit to effectuate the precepts of Lopez might. It's time for the Supreme Court to either start dealing with their mess or Congress might need to make all criminal cases appealable to the Supreme Court by law, rather than by cert. That might get their attention.
Posted by: william | Apr 16, 2007 12:15:08 PM
The best guess from my perspective is that there is a natural transition that comes with the change in the Court's composition, including its leadership.
Hmm. There may be other factors at work. My own suspicion is that the Justices have been bogged down in preparing lengthy, high-intensity opinions in the pending blockbuster cases this Term, with many separate concurrences and dissents.
We'll see. As soon as tomorrow, we might get 100-page-plus PDFs dropped on us by the Court in the partial-birth abortion cases, the secondary school AA/racial preferences cases, or even Claiborne and Rita. That could explain the delay by itself.
Posted by: Mike O'Shea | Apr 16, 2007 1:29:10 PM
"That is a ridiculous statement that no one is harmed. While the percolation approach to dealing with issues might make sense in some areas of law, letting important criminal law and procedure issues "percolate" endangers virtually everyone's ability to comply with the onerous penalities of U.S. law."
I assume Mr. Goldstein's statement was made in a relative sense. Obviously, every Supreme Court case is important to *someone,* every aspect of jurisprudential uncertainty causes *some* harm, and justice delayed is justice denied to some extent in every case, etc.
Rita and Claiborne are important to criminals, and KSR is important to business, but the world isn't going to end while the Court makes up its mind any more than it would in the context of any other case.
Posted by: | Apr 16, 2007 4:30:47 PM