Changing Work Patterns in the Supreme Court


The Supreme Court decides well fewer than 100 orally argued cases each Term. This is only a fraction of the number of cases the Supreme Court heard in the past. There is concern that Court will hear even fewer cases during the 2016 Term due to the ongoing Supreme Court vacancy. The dynamics of these cases that the Court hears has changed as well. In particular, the number of amicus briefs filed by interest groups and other non-parties interested in a case’s litigation have gone up substantially. Few cases now come through the Court’s merits pipeline without amicus briefs filed on the merits, and a growing number of granted (and denied) cases have amicus briefs filed at the cert stage as well.

This evolution leads to cases with many more pages of documents for the Justices and their clerks to review than in the past.  On the aggregate Supreme Court opinion length has increased over time (see generally Black and Spriggs 2008) as well. This may be a function of the additional time the Court has to focus on each individual case due to the shrunken docket. It also may have to do with the increasing amounts of information presented to the Court on a case-by-case basis due to the growth in case filings. In Obergefell v. Hodges, for instance, there were 149 amicus filings.*

For a forthcoming article, I aggregated information on the length of Supreme Court majority opinions as well as the cumulative length of all briefs filed in each case from the 2005 through the 2014 Terms. Although I have a variety of measures of length, in this post I rely on word counts. The longest opinions were from recognizable cases, although several landmark decisions did not make this list. The order of these cases may also be somewhat surprising.

Two of Justices Kennedy’s opinions rank as the top two longest with Boumediene v. Bush and Citizens United v. FEC. This is followed by Justice Scalia’s opinion in District of Columbia v. Heller. Other significant decisions were not the longest in recent years. Obergefell is an example of this. As you can see below, there is some commonality and a lot of difference between the cases with the longest cumulative word counts based on the briefs (all amicus and parties’ briefs combined) when compared to the longest opinions in recent year.

The word count for the briefs in Obergefell far exceeds that in any other recent case. Several of the marriage equality cases make this mix along with Obergefell including Hollingsworth v. Perry and United States v. Windsor. This list also has many recent landmark cases that will be cited by Supreme and lower court opinions for years to come. In terms of cases that appear on both charts we have NFIB v. Sebelius, Burwell v. Hobby Lobby, and District of Columbia v. Heller.
The combination of the counts from briefs and from opinions allows for the creation of a ratio based the relative length brief to opinions. This shows cases where there are a large number of filings with short opinion (a high ratio figure) as well as cases where there are fewer filings and longer opinions (a smaller ratio figure). The figure below presents the ratios for the cases in the two figures above.


With this figure we can see that longer opinions with fewer filings like we have in Boumedienne v. Bush have, as expected, lower ratio numbers, while cases like Fisher and Obergefell with many filings each and shorter opinions rank high on the ratio scale. Further investigation may show if there is any symmetry between cases with higher or lower brief to opinion length ratios, and what additional information can be extracted from this.

On Twitter: @AdamSFeldman

A working version of my article described in the post which is currently under review is available here

* Based on a LexisNexis search within the case’s docket for TITLE(amic!)

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