Overwriting and Under-Deciding: Addressing the Roberts Court's Shrinking Docket

How do we evaluate a Supreme Court that writes more than it decides? Despite having the lowest decisional output in the modern era, the Roberts Court is the most verbose Supreme Court in history. The current Justices are more likely than past Justices to have their individual say in cases, writing more concurring and dissenting opinions than prior Courts. These opinions are longer, often strongly worded, and rarely add clarity to the underlying decision. The Roberts Court has shifted from being a decisional body to becoming an institution that comments on more cases than it decides. This article critiques the Roberts Court’s tendency to overwrite and underdecide. Despite Chief Justice Roberts’s Senate testimony asserting that the Supreme Court should take more cases, the Roberts Court has fallen below the previous recorded lows of the Rehnquist Court. Returning to Chief Justice Roberts’s goal for the Court to be more productive, this article offers two solutions: the Court should stop publishing (1) signed opinions and (2) separate opinions. At a time when government feels strained, if not broken, the Supreme Court’s reluctance to decide actual controversies—but allowing each Justice to publish their separate ideas on each decision—merits serious discussion. Should the average number of dissents (56) rival the average number of signed majority decisions (67)? And what are the opportunity costs of a Court that averages 31 more separate opinions each Term (98 total, comprised of 56 dissenting opinions and 43 concurring opinions) than decisional opinions? Ironically, Chief Justice Roberts has spoken on his Court’s tendencies to individualize the law. In a 2007 interview, Chief Justice Roberts admonished that “every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they’re writing separately, about the effect on the Court as an institution.” Looking at the numbers, it truly is time to worry. It is also time for the Justices to return to the Court’s primary duty—the duty to decide.