Through the first thirty-five slip-opinions of the Supreme Court’s 2016 term there are notable similarities and differences from the Court’s prior terms. All decisions so far this term were determined by eight Justices or fewer as Justice Gorsuch has yet to sign on to a majority or separate slip-opinion (Beckles v. United States, for instance was decided by seven Justices as Justice Kagan recused).
Equally Divided Votes
The Court has yet to split equally this term and may not have such a split at all. During the previous term, there were four such decisions, the most since 1987, creating a chaotic image for a Court with no ninth Justice in sight. Two of these four decisions – Hawkins and Friedrichs – came out of the Court’s first thirty-five decisions last term.
What has changed from last term? One explanation is that Justice Scalia’s death was a shock that caught the Justices off guard. They had already granted cert in the cases for the 2015 term, some of which dealt with divisive issues. In these cases, perhaps there was no way to have a Justice budge from his or her position. Chief Justice Roberts though has been described as quite conscious of the Court’s image and based on this as a strong proponent within the Court of reaching consensus. He likely has pushed for camaraderie in Court’s decisions so far during this 2016 term.
The Justices came into the 2016 term with the knowledge that they would probably get through most if not all of the term without an odd number of Justices on the Court. They could select cases based on this understanding and perhaps decided to take cases that were less polarizing.
The Court’s earlier decisions each term also tend to be less contentious as the cases that cause more friction between the Justices are generally released towards the end of each term. With Justice Gorsuch now in a position to throw his hat in the ring, his potential involvement in the cases creates a situation where further equally divided votes are unlikely.
Unanimity / Unsigned
There have been nineteen unanimous opinions through the first thirty-five this term. Must be some kind of record, right? Not quite. Only three years ago during the 2013 term the Court issued twenty-four unanimous opinions out of the first thirty-five. Where do the Court’s three unsigned (per-curiam in these cases) opinions so far this term fit in with previous years? It doesn’t touch the ten out of the first thirty-five the Court released last term.
The high level of unanimity early each term generally has to do with the issues involved in this set of cases. If the Court saves its tougher cases for the end of the term we might expect this high level of unanimity through the Court’s earlier decisions each term. One way to further explore this dynamic is by examining vote splits.
Just as there high level of unanimity early in the Court’s terms, there tend to be few five-to-four voting splits (or five-to-three with eight Justices) early each Term. Since 2010 the Justices have split this way in 10.2% of cases out of the first thirty-five each term (25 of 245).
When we look at who has written opinions in these cases, Thomas has written the most and Sotomayor is the only Justice who has not written any.
Both of these findings are interesting. Thomas’ because he tends towards conservative decisions and Sotomayor’s because she tends towards liberal ones. Most of Thomas’ opinions in these cases came closer to 2010 than to the current term. This is likely a product of the ideological splits among the Justices in these cases. The Court’s liberal wing: Justices Breyer, Ginsburg, Sotomayor, and Kagan were in dissent in eight such cases out of the Court’s first thirty-five from each of the 2010 through the 2013 terms. Out of the Court’s first thirty-five decisions each term these four Justices have not dissented together since the 2013 term. To provide a bit of contrast the Court’s conservative wing – Justices Roberts, Thomas, Alito, and Scalia (until last term) – dissented together five times between 2010 and when Scalia passed last term with the last such decision coming in the 2014 term.
While Justice Thomas leads in five-to-four decisions since 2010, which Justice tends to write most of the Court’s early term opinions generally? We might expect a fairly equitable split (which we find), although there are shifts between terms.
This term is the first since 2010 where a Justice has written six opinions out of the Court’s first thirty-five. That Justice is Justice Breyer. Justices Alito and Thomas are the only Justices who have not written more than four opinions out of the Court’s first thirty-five since the 2010 term. While Justices Ginsburg and Sotomayor are on the higher end of written opinions in this set for the 2016 term, Justice Alito’s two written decisions puts him below the rest of the Justices.
Notes from 5-22-2017 decisions
- Justice Gorsuch still has not participated in a decision related to a written slip-opinion
- The Court has yet to issue an equally divided vote this term
- We saw a unique vote split in Cooper v. Harris with Justices Kennedy, Alito, and Roberts dissenting in part
On Twitter: @AdamSFeldman