Why Is the Supreme Court Waiting on Major Decisions?

Matt Berman
National Journal

The Supreme Court has it out for journalists. At least it is starting to feel that way, with another late-June decision day passing without opinions on any of the major issues facing the court: same-sexmarriage, affirmative action, and the Voting Rights Act. Thursday morning came and went as journalists and court-watchers anxiously counted decision boxes, all coming to relatively naught. 

So why is the Supreme Court seemingly holding onto the biggest decisions? Is there something nefariously political at work?

The likely answer to that, according to today's live blog from the super-informed staff of SCOTUSBlog, is no. While pretty much everyone at SCOTUSBlog is careful to start their answers to reader questions with a "it is impossible to know what the justices are thinking," they are quite confident that politics isn't taking a role in the big-case holdup.

Asked if the justices may be holding cases to release all on one day to "balance out ideological opponents," SCOTUSBlog's Mike Gottlieb responded:

The better question is why would they? What would be the motivation? And whose motivation would it be? And if one justice started trying to game the release of an opinion in order to influence a 24-hour news cycle, couldn't another justice just fire back by demanding more time to adjust a dissent or concurring opinion? The institutional dynamics of the Court make it unlike the political branches. We can never know for certain what motivates an individual justice, but we can say with a very high degree of confidence that they don't have a strategy to delay opinion releases in order to best capture the benefits of particular 24-hour news cycles.

So why are decisions such as the one on the affirmative-action case Fisher v. Texas taking so long? Especially when the Court heard the case in early October? From SCOTUSBlog's Amy Howe:

It's a contentious case in which there are likely to be multiple opinions on each side. Other than that, no [idea]. One of the early affirmative action cases, Bakke, also took an eternity; it was argued in early October (like Fisher) and not decided until the bitter end of June (28th, I think).

In response to a similar question, a (mysteriously unnamed) SCOTUSBlog contributor said the Fisher delay could also be due to a 4-4 split, as Justice Elena Kagan recused herself, or because the opinion's author "has to make substantive changes to secure (or keep) a deciding vote." These reasons (recusal aside) of course could also go for one of the other big remaining cases as well.

It's easy, though, to piece together why many people are so stressed and suspicious about the seeming delay from the court. Especially after last year's political blockbuster, confusion-cluster Affordable Care Act decision. And, as SCOTUSBlog is careful to say, we can't possibly know for sure what the justices are thinking.

But after last year, we do have a good sense that Chief Justice John Roberts is very protective of the Court's public image. After the 5-4 Affordable Care Act decision, some court-watchers were quick to pin Roberts's decision to uphold much of the health care law on his desire to preserve (and, in part, restore) the image of the Court as apolitical. As David Franklin wrote then in Slate:

In the aftermath of Bush v. Gore and Citizens United, the percentage of Americans who say they have "quite a lot" or a "great deal" of confidence in the Supreme Court has dipped to the mid-30s. A 5-4 decision to strike down Obamacare along party lines, whatever its reasoning, would have been received by the general public as yet more proof that the court is merely an extension of the nation's polarized politics. Add the fact that the legal challenges to the individual mandate were at best novel and at worst frivolous, and suddenly a one-vote takedown of the ACA looks like it might undermine the Court's very legitimacy.

At the time, the New Yorker's Jeff Toobin wrote that Roberts's ACA decision

insulates [him] from charges of partisanship for the foreseeable future. This may be worth remembering next year, when the Court, led by the chief justice, is likely to strike down both the use of affirmative action in college admissions and the heart of the Voting Rights Act of 1965. And if, in the same year, the justices uphold the noxious Defense of Marriage Act, many will deem Roberts’s motives beyond reproach.

A year later, the Supreme Court is deciding those cases. Decisions may not have been handed down Thursday, but they likely will be by next week. With the Court's image firmly in mind, we'll soon get to see just how much goodwill the chief justice has amassed.

Update: For more on just what went into the Supreme Court's Affordable Care Act decision, and why it took so long to come, check out National Journal's Margot Sanger-Katz's reporting from last year.