By Meg Penrose


“The duty to decide is the primary judicial duty.” If one agrees with Judge Posner, then the Roberts Court is shirking its primary duty. Empirically, the Roberts Court is the least productive of any Supreme Court. It averages less than 70 signed opinions per year. When per curiam opinions are included, the decisional average rises to 76 cases per Term. These numbers are less than one-third the decisional average for the 1926 and 1930 Taft Courts. The Roberts Court fares no better when compared to recent predecessor Courts, falling well below the averages of the Warren, Burger, and Rehnquist Courts. Even as the Roberts Court decides fewer cases, it continues to write a record number of non-decisional opinions. These separate concurring and dissenting opinions have outnumbered majority opinions in all but one Term that Roberts has served as Chief Justice. In fact, in 2007, the Court issued more dissenting opinions (72) than majority opinions.

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Recommended Citation
Meg Penrose, Overwriting and Under-Deciding: Addressing the Roberts Court’s Shrinking Docket, 72 SMU L. Rev. F. 8 (2019).

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