Actually, strike that. It is going to be a busy late May. We learned today that we probably should expect a "heavy" day of decisions on Monday, perhaps up to six, from the Court. Most of those rulings will barely see the light of day beyond a wire story or two and on the legal blogs that have sprouted up like weeds across the Internet landscape. Of the remaining cases left unresolved, the two "affirmative action" school cases, out of Seattle, Washington and Jefferson County, Kentucky, clearly are the headliners and it would not shock me at all if the decisions in those cases aren't announced until the very end of June.
It is not unusual for the justices to scramble toward the end of their term to get their homework done before heading off to summer break. Evidently, they are just as prone to procrastination as the rest of us are. But this term has felt different and not just because of the oncoming crush of decisions. This term has felt different because the Court will produce only 71 written rulings—reportedly a new low in the modern era. This, and the fact that the Justices haven't exactly rushed to get their docket in order for next term, has high court watchers (the Kremlinogists of the modern age) all agog.
Do I know why the court hasn't been willing or able to distribute more decisions before now? Absolutely not. Do I wish to speculate? Sure, why not. It could be that Chief Justice John J. Roberts, Jr. is not nearly the taskmaster that his predecessor, William H. Rehnquist, was when it came to cajoling the other justices into completing their written assignments on time. It could be that with Rehnquist and Sandra Day O'Connor gone, and with Roberts and Justice Samuel A. Alito, Jr. in their place, the court is still struggling to find consensus on some of the more contentious cases that have come before it. Or maybe the printers just aren't working at the supreme court building.
Do I know precisely why the court isn't taking more cases for next term or why it seems content to resolve a record few disputes? Absolutely not. And this time I am not even willing to speculate. All I can say is that Rehnquist made it a policy during his tenure as chief justice to retract the court's power by limiting the number of cases it took and decided each term. And that despite some comments to the contrary so far Roberts has been unable or unwilling to stem that tide.
Some cases the court has to take. Other cases are so silly that it would be a waste of time. But the vast majority of cases fall into the third category, where the justices have great discretion to get involved. It is not a power that should be used lightly. But it is a power that should be used more.