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Roberts Court Could Extend Into July Due to Virus Impact (2)

June 25, 2020, 2:19 PMUpdated: June 25, 2020, 8:30 PM

The U.S. Supreme Court is primed to issue its fewest opinions in a single term since the Civil War, but it could still be difficult for the justices to get everything done on time.

They issued one opinion on Thursday, leaving 13 outstanding, including the disputes over President Donald Trump’s financial records and Louisiana abortion restrictions. More opinions are coming Monday and Tuesday of next week, the high court said. It doesn’t say ahead of time which cases are going to be decided or how many opinions will be announced.

“At this point, it seems inevitable that the Court will not recess for the summer until July,” said veteran Supreme Court litigator Sarah Harrington, a partner at Goldstein & Russell. The court usually doesn’t release more than five opinions in a day, she noted.

The 56 total opinions expected before the term ends would be the fewest since 1862, when the court, embroiled in the second year of the war, issued only 41 signed decisions, according to Adam Feldman, who looks at high court trends on his blog Empirical SCOTUS. The justices have averaged 68 opinions per term in the past decade or so.

Blame the Covid-19 pandemic. The justices postponed 20 cases that were scheduled to be argued in March and April, putting 10 off until next term.

The remaining 10 cases heard during the court’s rare May sitting could push the issuance of end-of-term decisions in argued cases into July—a first since Chief Justice John Roberts began leading the court in 2005. The last time the court issued a ruling in an argued case in July was 1996, Feldman said.

“Bottom line here is that we are in uncharted waters,” he said. “I don’t think anything is off the table.”

Quick Turnaround

Finishing the term “on time” has a flexible meaning at the high court.

It typically tries to wrap up decisions in argued cases in the last week of June, but it often adds argument days at the end of the month, including after its official end date.

The Supreme Court’s 2019 term is scheduled to end June 29. The justices have already announced plans to issue opinions on June 30 and could add additional decision days later in the week.

The justices added two extra argument days last term, handing down the most anticipated cases on partisan gerrymandering and the 2020 census on June 27—three days after the court’s scheduled end date.

Having 13 unannounced opinions isn’t unusual at this point in the term. But the challenge now is whether the justices can turn around the cases they heard in May at an unusually accelerated pace.

“Because of the late arguments in May, it appears likely that the Court may need additional time to resolve all pending cases,” said Paul Hughes, co-chair of McDermott Will & Emery’s Supreme Court and Appellate Practice Group.

Getting the May cases out by June 29 would require a turnaround time of between 47 and 56 days.

To be sure, the justices can rapidly release opinions when necessary. It took just one day for the court to issue its ruling in Bush v. Gore, over the disputed 2000 presidential election.

But the average time from argument to opinion so far this term has been 124 days. The shortest time for an opinion this term is 36 days. The court’s fastest writer, Ruth Bader Ginsburg, wrote that one in a sentencing case, Shular v. United States.

The remaining cases include some of the term’s most consequential. The Trump financial records matter was argued May 12.

“Under normal circumstances, the Justices are very motivated to finish by the end of June so that they can get to their summer travel and speaking plans,” Harrington said.

But this year, she said, “it is unlikely that many of them will be doing much traveling, so the pressure is off.”

(Adds comment from Hughes. Previous update added opinion days next week, Harrington comments, case links. )

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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