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Supreme Court, done with arguments, turns to decisions

The justices have released opinions at a slow rate this term, and many of the most consequential cases remain for the last two months

The Supreme Court building is seen at dusk in Washington in 2021.
The Supreme Court building is seen at dusk in Washington in 2021. (Bill Clark/CQ Roll Call)

The Supreme Court has dozens of cases to decide in the next two months that could reshape American law on race in elections and education, religious protections in the workplace and other areas.

The justices already have weighed in on high-profile issues since the beginning of the term in October. They kept a commonly used medication abortion drug on the market, and rebuffed former President Donald Trump’s effort to intervene in the Justice Department’s investigation that found classified documents at his private club.

But the last oral arguments of the term were last week, and there are still opinions in potential blockbuster cases that will be released before the conclusion of the term at the end of June.

And it could be a time crunch. Experts say the court has handled cases at a historically slow pace this term, with just 13 issued. By this time last term, the court had issued nearly two dozen opinions.

Justice Brett M. Kavanaugh defended the court’s slow pace in an appearance at a Notre Dame event in January, attributing it to “a coincidence of which mix of cases were in October and November.”

“I am confident they’ll all be out by the end of June. So I don’t think anyone needs to worry,” Kavanaugh told the crowd at the Notre Dame Law Review Federal Courts Symposium.

Slowing down

John Elwood, a partner at Arnold & Porter and the head of the firm’s appellate and Supreme Court practice, said he has never seen this many opinions outstanding this far into a term.

One potential factor could be cases where justices want to write separately in the decision, Elwood said. The more justices write about a case, the longer it will take to release the opinion.

“It’s kind of hard to tell what’s going on,” Elwood said. “When we finally see who all the dissenters were and how splintered the opinions may be, we’ll have a better sense of whether this really was an unpleasant time for the court, or whether it was just a lot of separate opinions or something like that.”

Brianne Gorod, chief counsel for the Constitutional Accountability Center, said that the delay in releasing decisions may wind up with the justices curtailing the length of opinions.

Justices might also end up forgoing concurring opinions “that don’t necessarily need to be written, just because of the volume of work that they’re obviously going to need to do to get all these opinions out in the next couple of months,” Gorod said.

This is also the first time the court has handled writing and distributing opinions since the leak of a draft majority opinion last term. A report from the Marshal of the Supreme Court Gail A. Curley released in January said staff had not been able to identify the leaker.

That report also found numerous shortcomings in the court’s document handling and information security that prevented staff from identifying the leaker. The report was not able to rule out a breach of the Supreme Court’s systems or that the draft was leaked accidentally by being left in a public place.

Coming decisions

The court heard some of its most consequential cases of the term in those first two months, including disputes over the reach of the Voting Rights Act and constitutionality of affirmative action in higher education.

The justices have also heard disputes over the fate of $400 billion in student loan forgiveness, religious exemptions from civil rights law, the definition of the Waters of the United States under the Clean Water Act and the Biden administration’s ability to use guidance on immigration decisions.

There is one case where the Court asked for additional briefing: in Moore v. Harper’s dispute over North Carolina courts’ review of state congressional maps. The Supreme Court heard oral arguments on it in December.

But after the state supreme court agreed to hear a related dispute, the Supreme Court asked the Justice Department and litigants to weigh in on whether the new state court action meant the justices should decide the issue at all.

On Friday, the state court reversed the decision related to the Moore v. Harper case, adding more uncertainty to how the Supreme Court may handle the issue.

The justices have already started accepting high profile cases for next term, including a dispute over the funding of the Consumer Financial Protection Bureau and potentially a spat over state social media laws. Next term the court could also end up facing a high-profile case about abortion access.

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