In recent weeks, the court has addressed cases on the great issues of the day without favoring the nation with even a whisper of explanation. In terse orders, the court expanded the availability of same-sex marriage, let a dozen abortion clinics in Texas reopen, and made it harder to vote in three states and easier in one.
Judges and lawyers who used to have to try to make sense of endless, opaque opinions now have to divine what the Supreme Court’s silence means.
There is something odd about the court’s docket these days. When the court considers a minor case on, say, teeth whitening, it receives a pile of briefs, hears an hour of arguments and issues a carefully reasoned decision noting every justice’s position.
When the stakes are higher, the court turns oracular.
“The court’s unexplained orders don’t always live up to its otherwise high standards of legal craft,” said William Baude, a law professor at the University of Chicago. “The court doesn’t tell us its reasoning, and we don’t even know for sure which justices agree with the result.”
It is probably useful to distinguish between two kinds of orders: ones denying petitions urging the court to hear appeals and ones taking action on emergency applications in cases pending in the lower courts.