Why Still No Opinion in U.S. v. TON?

As Acting SG Neal Katyal noted at Fed Bar, it’s the oldest argued case sitting on the Supreme Court’s list of pending cases, and he said that nearly three weeks ago.

Why no opinion yet (oral argument recap here)? Here are our speculative reasons….

1. The Court is waiting for tomorrow’s oral argument in United States v. Jicarilla Apache Nation. Announcing an Indian law decision right before a second one is argued creates a sense of theatrics. Probably not.
2. The Court doesn’t want to give too much away in its TON decision before the JAN argument. The cases are not all that similar, except they do involve to some extent the scope of the government’s trust responsibility to Indian tribes. Possible.
3. The Court is split 4-4 and continues deliberation in hopes that one Justice will switch sides in order to reach a needed fifth vote. Possible, but the Court has issued a few 4-4 decisions already this Term. Just a few though.
4. Justice Thomas, who is often assigned Indian law opinions in noncontroversial cases (also ones that tribal interests tend to lose 9-0 or 8-1), is working unusually slow this Term.
5. A major earth-shattering change in Indian law. Not sure how the TON would generate such a result, but who knows?