In the Supreme Court, no decision is a bad decision. And it’s happening too often now.


Something weird happened this week: The Supreme Court didn’t issue any of the 33 rulings that are still expected in cases that have been argued during its current term, which began last October. An institution deeply committed to its traditions, the court usually releases such rulings every Monday (or, if it’s the week of Memorial Day, Tuesday) between the last oral arguments in April and the justices’ summer recess.

Not having any decisions to hand down at all during the final week of May, with so many still to come, is more than a little unusual.

And because that’s usually not enough for a court that doesn’t like to hand down more than four or five decisions on the same day, the court typically adds extra “hand-down days” toward the middle and end of the final weeks of June to meet an all-but-formal goal of clearing the decks by July 4. Not having any decisions to hand down at all during the final week of May, with so many still to come, is more than a little unusual. Indeed, it’s indicative of a court that is way behind, having resolved by June 1 only 26 of the 59 cases that received plenary review, a paltry 44 percent of the total. (It’s been decades since the court left such a high percentage of its merits rulings for after June 1.)

There are both obvious and less obvious reasons for why the justices are running behind. No doubt, the unprecedented leak of a draft majority opinion overturning Roe v. Wade and its continuing fallout are distracting the justices. So too, the growing amount of attention the court is paying to applications for emergency relief and other decisions on the so-called “shadow docket” — on matters ranging from abortion to congressional redistricting to Covid vaccination mandates to restrictions on social media platforms. Even as the court handed down no argued cases on Monday, it handed down three significant shadow docket orders. All in, then, it’s going to be an unusually hectic last month of the term at One First Street, starting on Monday, when more decisions are now expected.

But for all of the focus on the numerator, it’s worth not losing sight of the denominator, too. Whenever the justices rise for their summer recess this year, they will have failed to reach 60 signed decisions in argued cases for the third term in a row, having handed down 56 such rulings during the 2020–21 term and 53 during the 2019–20 term. Before then, the court had not handed down so few decisions since 1864 — in the middle of the Civil War. And although the 2019–20 total was necessarily affected by the onset of the Covid pandemic (which led the court to postpone arguments in 10 cases to the 2020–21 session), the trendline is, by now, unmistakable: The Supreme Court is handing down fewer and fewer merits decisions each term.

This trend began in 1988, when Congress gave the court all-but plenary control over its docket, allowing the justices to pick and choose almost every case that they hear. Not only that, but when the court exercises its discretion to hear a case — by “granting certiorari” — the justices are allowed to limit the scope of their review either to specific questions framed by the parties, or, in some cases, to questions the justices write themselves. Overnight, the court went from hearing more than 150 cases each year to fewer than 100. Throughout the 1990s and 2000s, though, the court still averaged 80–90 merits decisions each term. The drop into the 60s, and now the 50s, is a phenomenon entirely of the last decade.

Justice Ruth Bader Ginsburg’s death in 2020 means that there’s no longer a fourth vote for cases in which it’s the liberal members of the court who want to hear the appeal.

There are lots of potential explanations for this trend. Among other things, the court is spending more and more time on the “shadow docket,” which are orders that don’t go through the plenary review process even though they often produce significant substantive effects. Likewise, although it takes four justices to grant certiorari, Justice Ruth Bader Ginsburg’s death in 2020 means that there’s no longer a fourth vote for cases in which it’s the liberal members of the court who want to hear the appeal. There’s also the inescapable reality that the fewer cases the justices agree to decide, the more time they can spend on the cases they do choose to hear — so much so that, not surprisingly, the average length of the court’s opinions has ticked up even as the total number of such opinions has trended down.

To those who don’t like much of what the current court is up to, this development may seem like a positive one; a court handing down fewer decisions is, presumably, one that can do less damage. But there are at least two respects in which the shrinking of the court’s docket is problematic even for those who might prefer that this particular court do less. First, there are entire swaths of lower-court decisions that the justices appear to be all-but ignoring.

Since 1996, for example, the court has exercised plenary review of exactly one court-martial appeal from a military servicemember (disclosure: I represented the servicemember), even though the military justice system continues to raise important and difficult statutory and constitutional questions about who can be tried and pursuant to which procedures. To similar effect, the justices have basically stopped taking up constitutional challenges to criminal convictions in state courts; during the entire 2019–20 term, the court heard exactly two such cases. Thus, from a structural perspective, the court’s shrinking docket means that it is increasingly not having the last word on important questions of federal law; lower state and federal courts are.

Second, and more problematically, there are at least two contexts in which litigants depend upon the Supreme Court to make new law: in suits challenging unconstitutional conduct by state or federal officers, whether the officer is immune depends upon whether the rights he allegedly violated were “clearly established” at the time of the alleged violation. The less law that the Supreme Court clearly establishes, the harder it is for plaintiffs to overcome that hurdle. To similar effect, state and federal prisoners seeking to challenge their criminal convictions after their direct appeals have ended have to show not only that the conviction violated “clearly established” law, but that the law was “clearly established” by the Supreme Court. When the court stops establishing law, those challenges are increasingly doomed.

The justices, of course, could commit to taking up more cases. But the real solution here is Congress. For the first 198 years of the Supreme Court’s existence, there was a healthy, ongoing, interbranch dialogue between Congress and the court over the shape and scope of its docket. When the docket became too crowded, it was the justices themselves who asked Congress for relief, and Congress acquiesced. The same should be true in reverse: Congress ought to seriously consider whether it went too far in 1988, and whether the time has come to restore some of the court’s mandatory jurisdiction — appeals that the justices have to hear, such as suits seeking nationwide relief against federal policies, or appeals from death-row inmates.

Reasonable minds will surely differ about how Congress should approach reforms to the Supreme Court’s docket. What ought to be clear, though, is that it’s long past time for Congress to tackle the question head-on. We might prefer a court that has less work to do, but the systemic implications of a court with an evaporating docket are, however counterintuitively, bad for everyone.