With a month left before its summer recess, the Supreme Court has yet to issue rulings on several landmark cases involving immigration, reproductive rights, and affirmative action. So on Monday morning, TV cameras were parked outside, and the courtroom was buzzing with anticipation when the justices convened to release orders and opinions.
Then Chief Justice John Roberts Jr. read an opinion about peat moss.
Reporters in attendance, at least one of whom had driven all the way from Charlottesville, Virginia, for the occasion, hoped at least for a decision in Fisher v. University of Texas, the long-awaited case involving race in college admissions that was argued back in December. Or perhaps an opinion in the state of Texas’ case challenging the Obama administration’s executive action on immigration, which would defer the deportation of millions of undocumented immigrants. Even a ruling in Puerto Rico’s bankruptcy case would have been more exciting than US Army Corps of Engineers v. Hawkes Co., a technical regulatory dispute involving peat moss and the Clean Water Act that was the subject of the first and only opinion of the day.
Reading from the bench, Roberts toyed with deflated reporters by jauntily discussing the benefits of peat, “an organic material that forms in waterlogged grounds, such as wetlands and bogs,” and its uses in gardening and golf. “It can also be used to provide structural support and moisture for smooth, stable greens that leave golfers with no one to blame but themselves for errant putts,” he continued. He ad libbed an observation about peat’s use in brewing whiskey, which was not in the published opinion.
But peat is not all golf balls and highballs, or the case wouldn’t have been at the high court. The Hawkes Co. wanted to harvest about 500 acres of peat moss from swampland in Minnesota for use in golf courses and landscaping. But the Army Corps told the company that the tract in question included wetlands, which it asserted were protected under the Clean Water Act. The Army Corps argued that its decision couldn’t be reviewed by the courts, but the company sued. The suit led Roberts to expound on the virtues of peat and ultimately to rule in the company’s favor by allowing the courts to oversee such wetlands determinations.
After Roberts cheerfully finished reading his opinion, he announced that there were no more decisions in the queue. Further opinions won’t come until next Monday.
While the unanimous Hawkes decision has the potential to weaken enforcement of the Clean Water Act, it isn’t among the court’s pending high-profile cases that could affect large numbers of people and tip the scales in the culture wars—the kinds of cases that make news. The cases that remain undecided are significant, and there are a lot of them. By one count, the court still needs to issue opinions in 24 cases argued this term. Right now there are only four days in June scheduled for the release of new decisions before the summer recess.
What explains the backlog? The court is not a transparent institution, so observers can only hypothesize. But the February death of Justice Antonin Scalia is no doubt a major factor. There’s been some speculation, for instance, that Scalia had been assigned to write the opinion in a case involving Puerto Rican self-governance. Puerto Rico v. Sanchez Valle remains the only case argued in January that hasn’t been decided. When Scalia died, the opinion in that case may have had to be reassigned to a different justice.
It’s possible that other half-written Scalia opinions, especially if they involved other contentious, potential 5-4 cases, are also in limbo or need to be retooled by other justices. As Justice Ruth Bader Ginsburg said last week, eight “is not a good number for a multi-member court.”
Regardless of the reasons for the slowdown, if the justices want to get out of town before the Fourth of July weekend and partake in some of those peat-enhanced activities, they’re going to have to start cranking out a lot more decisions.