Don’t Blame Justice Souter

by Xan White, Research and Special Projects Associate, Constitutional Accountability Center

Beginning with David Souter’s first Term on the Supreme Court, during which Linda Greenhouse of the New York Times wrote that “Lawyers who watch the Court closely have taken to referring to Justice Souter’s chambers as a black hole, from which nothing emerges,” Justice Souter developed a reputation for slow, methodical opinion writing. Until the end of Justice Souter’s tenure, Supreme Court conventional wisdom – reinforced by stories about Justice Souter’s insistence on writing drafts in meticulous longhand – held that he was the slowest worker on the Court.

One might expect, then, that Justice Souter’s retirement at the end of last Term would have led to a Supreme Court that handled its workload more quickly.  In the first Term since Justice Souter’s retirement, however, the opposite has been true.  Because the Term is not quite over, we obviously don’t have the final data on the Supreme Court’s pace this year.  But the numbers so far offer marked evidence of a slowdown, and at least one Justice has remarked on the Court’s slow pace.  In an article in Sunday’s USA Today, Joan Biskupic reported that Justice John Paul Stevens responded to a question about the frenetic pace at the end of the Term by saying, “I’m mainly concerned about getting the work done by the end of the term.  We’re a little behind in some of our output.”

There are currently 25 cases that have been argued and have yet to be decided.  Even if the Court handed down all 25 of those decisions on its next opinion day (Monday, June 14th), the average number of days between argument and decision would still increase by more than a week over the average for each of the previous two Terms.  Of course, the Court won’t hand down 25 decisions next Monday; when the Term ends the week of June 28, we’ll likely see an increase in average time between argument and decision of at least ten days.

The average time to decision tells only part of the story.  This Term, seven cases will languish more than 180 days between argument and decision.  Last Term, only two cases took more than 180 days to decide.  In the Term before last, that number was four.

After Justice Sonia Sotomayor was confirmed by the Senate, Chief Justice John Roberts said that the addition of a new Justice can be “unsettling.”  But it’s difficult to blame Justice Sotomayor for the Court’s slowdown; she has written seven majority opinions this Term, more than many of her colleagues.

When the outstanding decisions from the Court’s November and December sittings are released sometime in the next three weeks, perhaps we’ll have some explanation for the slowdown in the form of lengthy dissents, elaborate concurrences, or complicated split opinions.  Or maybe the opinions will be straightforward, and Court-watchers will be left wondering why the pace slowed down this Term.  In any event, for the first time in almost two decades, no one will be able to blame Justice Souter.