The First Nineteen

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(image via Boston Globe)

So far, this has been an odd and unique Supreme Court Term in several respects.  For instance, Justices Thomas, Ginsburg, and Sotomayor all dissented in the same case (in DirecTV v. Imbrugia – Justice Thomas’ dissent was very different from Justice Ginsburg’s which Justice Sotomayor joined).  We’ve had a Justice pass away in the middle of the Term.  This is quite a rare occurrence.  Since 1950 only two Justices, Justice Rehnquist and Justice Jackson (in 1954) have died while in office and the last Justice to die in the middle of a Term was Justice Harlan Stone in April of 1946.  This post looks at trends in this Term and the five preceding it, examining both idiosyncrasies and similarities.

We are on pace for the fewest signed opinions in recent history.  So far the Court has released only 19 signed opinions and so we will go into April with this count.  This seems like a slow pace, albeit in a bizarre Term, but to be sure I looked at the date by which the Court released 19 signed opinions in Terms 2010 through 2014.

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The Court is almost a month behind its output at this point in the Term compared with recent Terms.  In fact, we are eight opinions behind the fewest number of signed opinion by the end of March from the previous five Terms.

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The Court’s output in the last month was likely slowed by the passing of Justice Scalia.  This has already led to rulings by an evenly divided Court in two instances, the first two since 2010, and will almost assuredly lead to stalemates in other cases that would have been resolved with an odd number of Justices.

Since signed opinions are down, I wanted to see if the number of unsigned opinions correspondingly rose.

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In fact, this year we have had ten unsigned opinions, which is the most within the timeframe of the first 19 signed opinions in the 2010 through present Terms (there were eight unsigned opinions along with the first 19 signed opinions in 2011).

What about the opinions themselves? I was interested to see if there were noticeable differences in the opinions from previous Terms.  Since this is a difficult aspect for comparison, I used a metric that I had already gathered for previous Terms : opinion word count.

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The average number of words in an opinion through the first 19 signed opinions is on par with what is has been since the 2010 Term.  It is interesting to note that the 11,467 word majority opinion written by Justice Kagan in FERC v. Electric Power Supply Assn. is the longest opinion of the first 19 in a Term for the 2010 through present Terms [I have a note about another interesting aspect of the FERC opinion at the bottom].

The final aspect I comparatively examined was the Justices’ voting coalitions.  Specifically, I wanted to see if the Court was more coalesced or fractured through the first 19 signed opinions than it has been in the past few Terms.  To gauge this I looked at the number of unanimous signed opinions.

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Unanimity is low so far this Term but not significantly lower than normal.  Since the Justices tend to decide the more contentious cases at the end of the Term it will be interesting to see the results of these decisions.  There very well may be more decisions by an evenly divided Court and the Court may work around ruling in some cases (for instance it could dismiss cases as improvidently granted).  The output factor is the most telling difference between this Term and the recent previous Terms, and based on the slow pace of decisions and the potential for the Justices to vote evenly in more cases, we may see the already increasingly lower number of signed opinions from recent Terms drop even more in OT 2015.

Note: I ran term frequency counts for all 19 signed opinions this Term to see what words came up most often.  Interestingly, not counting words three letters or fewer, three of the first 21 words that came up were used only in the FERC opinion.  These terms are “FERC,” “electricity,” and “wholesale.” Of the 21 most frequent terms, the term that came up in the next fewest number of cases was “response,” which came up in four.  The top two terms, “case” and “court,” both came up in all 19 opinions.

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Follow me on Twitter: @AdamSFeldman

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