SCOCAblog, the online publication of the California Constitution Center at Berkeley Law and of the Hastings Law Journal (yes, the Hastings name is still used, until the next academic year) takes a deep dive into Supreme Court data to conclude that “over the past 24 years the court is taking longer to decide fewer cases with increasing unanimity.” The study says that recently, “enough cases are taking much longer that they are both increasing the average and less reasonably excludable as outliers.”

On the other hand, SCOCAblog says the court “is resolving more cases,” but those resolutions are without opinions. It points to a 2015 policy change that has led the court to dramatically increase the number of grant-and-holds in criminal cases, which in turn leads to more disposition decisions when the grant-and-holds are removed from the docket after opinions issue in the lead cases; either review is dismissed in the grant-and-holds or they are remanded to the Courts of Appeal for reconsideration in light of the lead case opinions. In fact, the blog suggests that the additional time taken by the increase in grant-and-holds and their dispositions is a cause of the delay in deciding straight grants by opinion. (Related: Underestimating the burden of grant-and-hold disposals.)

The yardstick used by the study to measure the time taken to decide cases by opinion is the number of days between the end of party briefing until a case is calendared for oral argument. The study doesn’t take into account amicus briefing (following “the conventional wisdom that it rarely matters”) or court ordered supplemental briefing (“ordering supplemental briefing can fairly be considered part of the court’s drafting process”).

There are other factors that are apparently not considered. Sometimes the court is ready to schedule oral argument in a case, but counsel — for good cause — is not; this delay is counted against the court in the study. Conversely, additional time that might be counted against the court but isn’t is post-argument supplemental briefing ordered by the court; if “supplemental briefing can fairly be considered part of the court’s drafting process,” then such briefing after a case has been calendared for argument should be included, too.


“What’s ailing the California Supreme Court? Its productivity has plummeted”