It’s been nearly a month since the Court announced it would hear re-argument in this case and would issue a supplemental order with additional questions to be briefed. That’s a surprisingly long delay.

The Court rarely orders cases to be re-argued, particularly outside the context in which the Court has only eight Justices at the time the case is argued initially, is internally divided 4-4, and orders re-argument once a ninth Justice is on board (those re-arguments typically happen within the same Term in which the case was first heard). In Citizens United, the Court’s re-argument order included the additional questions to be argued. That order came down at the end of June of that Term. In Kiobel v. Royal Dutch Petroleum Co., the Court ordered re-argument six days after the original argument and specified the additional issue to be briefed.

To speculate, perhaps the Court is going to introduce several questions to be argued and the Justices are going back and forth on how exactly to frame those various questions. I’ve also wondered about whether one or more Justices might be writing a dissent from the re-argument order. I’m not sure if that’s ever happened. I’ve also thought about whether the Court could be holding the re-argument order until it gets the cert. papers in the Turtle Mountain Band case on whether Sec. 2 of the VRA creates a private right of action, but that doesn’t seem too likely. But it’s a bit mysterious as to why the re-argument order has not come down yet.