In the News: Slow SCOTUS

N. Rodgers: Hey, Aughie. J.Aughiebaugh: Good morning, Nia. How are you? N. Rodgers: I'm good, but I have another super short question for you. J.Aughiebaugh: Okay, sure. Go ahead. N. Rodgers: Is the Supreme Court dead? I don't mean that literally because I think we would have been told, but like, have they suspended operations? Are they moving to the Bahamas to avoid taxation or whatever it is that all those rich people took all their money to Bahamas? What's going on with the Supreme Court, that they're, as we would say colloquially, not doing nothing? J.Aughiebaugh: They do seem to be a little tardy, this current term, in deciding cases. Listeners at the time of this recording, this is the middle of February. The Supreme Court has heard a whole bunch of cases, like they heard a whole bunch of oral arguments, Nia, in October, November, and the first week of December. Here too, they have of only settled two of the cases and in only one did they actually produce opinions and it's just completely befuddling court watchers. N. Rodgers: Okay, so that's not a normal state of affairs? J.Aughiebaugh: Oh, no. N. Rodgers: Is that why people say they're grumpy and not getting along? There's all these kinds of rumors that they are having a lot of interpersonal difficulties and stuff like that because nobody is hearing anything from them. J.Aughiebaugh: Yeah. Their lack of decisions, Nia, to put this in historical context, the last time we've had accord this far into their term, only settled two cases, is pre-Civil War. Mind you, it's not like the Supreme Court is hearing a whole bunch more cases, right? As we've chronicled in previous podcast episodes, the Roberts Court since the pandemic has dipped below 70 cases heard and decided per term. N. Rodgers: Are they hearing harder cases than normal or did the Dobbs leak burn them hardcore and they're like, we're button down so hard that nothing's coming out of here until it is perfect? J.Aughiebaugh: Well, you and I talked about this when we looked a couple of weeks ago at the the Dobbs leak investigation. I went ahead and mentioned at the end of that episode, Nia, that you're going to see some changes in how the court does its work; it's going to be much more institutionalized, it's going to be much more bureaucratic. N. Rodgers: So this is part of that. J.Aughiebaugh: I suspect part of what's going on right now is that a lot of the workarounds that they developed during the pandemic no longer exist because the court-martial went ahead and chastised the court pretty severely for its work processes not being secure. You and I know this, right? N. Rodgers: Now that they have secured it, it's slowing things down and making them much more deliberate, even though they were already a pretty dang deliberative body. J.Aughiebaugh: Oh, yeah. Right. N. Rodgers: They never were like, lightning. We would hear a case, and a week later, we will make a decision, like that how speedy trial thing does not apply to SCOTUS. Speedy is how I define it, thank you very much, and because I am the Supreme Court, you will take when I give it to you. J.Aughiebaugh: Yeah, the speedy trial component of the US Constitution applies to when you got arrested, but once you file an appeal. N. Rodgers: It could take 1,000 years. J.Aughiebaugh: Yeah. Molasses seeping from trees. It is quicker process, right? N. Rodgers: I'm watching paint dry. What are you doing? I'm watching paint dry while I wait for SCOTUS to respond. J.Aughiebaugh: Here's another variable that I don't think a lot of scholars have given very much attention to. Historically, and I'm just going to use two examples, historically in the last roughly 35 or 40 years, there was always a justice who banged out opinions quickly when they were assigned the majority opinion. Ruth Bader Ginsburg had the reputation as always cranking out the first majority opinion of a term because she liked to do things fast, right? N. Rodgers: Well, yeah, and she also didn't sleep. J.Aughiebaugh: Yeah, she did. N. Rodgers: She slept like two hours a day or whatever, some really low amount. J.Aughiebaugh: Before her, and interestingly enough, she actually took this Justice's seat. The subject of my dissertation, Byron White. Byron White had a rule in his office that if he got assigned a majority opinion, his clerks and he had to have a close to finished draft within a week to 10 days. N. Rodgers: Okay. J.Aughiebaugh: Because his thought was. N. Rodgers: We need to do this while it's fresh in our minds. J.Aughiebaugh: Yes, and we need to give my colleagues, Justice White's colleagues, an opportunity to respond. The quicker we get this out, the quicker. N. Rodgers: They can write their congruences in the sense. J.Aughiebaugh: Yes. We don't have that kind of justice right now, right? N. Rodgers: When we interview the next justice, we need to say, "So, how long does it take you to write an opinion?" We need to put that on Amy Klobuchar's desk as the question we need her to ask. Because she's from the Midwest so she could ask it in a way that's not offensive but sounds efficient. J.Aughiebaugh: Yeah. N. Rodgers: She would be all about efficiency anyway so she would be fast. J.Aughiebaugh: Are you a slow horse or are you a fast horse, right? In the language of intelligence agencies, are you a fast analyst or are you a slow analyst? But here's the other thing, and you mentioned this a few moments ago. We do have a very divided Supreme Court and it's divided in two ways. You have the conservatives versus the liberals, which has been well chronicled in mainstream media. Right now, at least two of the liberals have seen in their time on the court, pretty much opportunities to cobble together a majority completely evaporate. If you're Sonia Sotomayor, you are Elena Kagan, you're like, "Oh man, this really stinks." But here's the other thing. The conservatives are still divided. You're talking about perhaps John Roberts and Brett Kavanaugh who are like, well, you can't issue this decision yet because I'm not done with my concurrence because I don't want to go as far as you are Clarence or Brother Brett. Neil Gorsuch, we don't know what island you're on, but we're visiting anytime soon. What I think is going on right now is a combination of factors. You throw in the post-Dobbs majority opinion leak, add in the fact that you just don't have one of those crusty, I'm going to get things done, because let's face it, Ruth Bader Ginsburg and Byron White were never known as being. N. Rodgers: I think of them as salty. J.Aughiebaugh: Yeah. They were salty. N. Rodgers: Salty in the modern vernacular. J.Aughiebaugh: Yeah. Particularly Byron White. N. Rodgers: I don't have time for this. J.Aughiebaugh: I don't have time for this. N. Rodgers: I got books to write. J.Aughiebaugh: I'm from Colorado. N. Rodgers: I have speeches to give. J.Aughiebaugh: I'm from Colorado. We have a job to do. You do the job, you do it to the best of your ability, and then you move on. Ruth Bader Ginsburg, by the time she got to the court she had been through experiences that most of us would be like, "Really, you put up with that garbage?" She doesn't have time for that crap anymore. But then you also go ahead and talk about a very divided court, Nia. There's no getting around it. This is according transition. N. Rodgers: I think there's a factor you haven't mentioned, which I'm going to throw out here, which is J. Rob. I think J. Rob's management style is like, "Oh come on, let's all work together." He's not a whip cracking. J.Aughiebaugh: He's not a Bill. N. Rodgers: He is not Rehnquist. I was going to say Rehnquist who would call you up in the middle of the night and say, "I expect that opinion on my desk at 8:00 AM, I hope you're working on it, click." That kind of thing. That's not J. Rob's style. His style is much more. J.Aughiebaugh: Collaborative. N. Rodgers: Yeah, coalition-building. Let's all be kumbaya, everybody getting the canoe, we're all going to row it together, it's all going to be fabulous. Right now, what he's doing is hurting cats and they're not interested. They're going in a variety of directions. He is not a whip cracky guy. J.Aughiebaugh: Because right now, some of the justices, I don't think they want to hold hands with some other colleagues. N. Rodgers: I'm not even sure if they want to be in the same room as some of their colleagues. Our message to the SCOTUS, Aughie and I, our message to you if you're listening, is quit listening to this and get to work, that's first of all. That's our first message. Our second message is, you were the best part of the government in terms of public popularity, and part of that was that you were seen as an efficient, responsive body. Right now, your record is worse than, did you say before the American Civil War? J.Aughiebaugh: That's correct. Yes. N. Rodgers: You're not doing yourself any favors in public opinion by not just stepping up and getting it done. I am fortunate that right now I work with people that I really like, but I have worked in the past of jobs of people I didn't like and it doesn't matter because you still need to get the job done. There still a public to be served, in our case, with students to be served, and you suck it up and you get it moving because you don't get to just be difficult because you can. J.Aughiebaugh: Yeah. I've said this in my court's class. I've said to students, when the Supreme Court starts acting like the other branches of the government. N. Rodgers: You know you are in trouble. J.Aughiebaugh: You know you're in trouble. Because if you've taken as long as Congress takes to pass laws, that's not good. When you're as bureaucratic as the bureaucracy, that's not good. N. Rodgers: Aughie would like you to start acting like you're a proper branch of government, please. J.Aughiebaugh: Again, if they're listening, justices, don't drop all of these cases in May and June because I'm not entirely sure there are enough hours in the day for college professors to analyze all these opinions. Do us a solid, help me help you. Because if you drop all of these decisions in May and June, we're not happy, which means then our analysis may not necessarily be all that positive. N. Rodgers: That's right. Don't make me talk bad about you. Thanks, Aughie. J.Aughiebaugh: Thank you, Nia.