This term helped define what the Supreme Court may look like moving forward (of course discounting the possibility of other upcoming vacancies). With Justice Gorsuch’s seemingly conservative stances we appear to be moving back into a similar territory that existed with Justice Scalia on the Court. Although the orally argued cases this term were not as salient and headline grabbing as they have been in years past, the Court made significant strides in areas ranging from business and patent law to election and even education law. In the process of paving new ground, the Court followed several trends while it bucked others.
The New York Times released a piece this morning describing the “Court’s Modern Record for Consensus.” This is a pertinent issue that stands out with a high volume of unanimous decisions. The Times uses a metric described as “shares of votes in support of the majority opinion” to substantiate this claim. While there was undoubtedly less dissension this term than we see on average among the justices, viewed another way the Court’s consensus was not as unique. This term is one of two modern Court terms where the number of unanimous decisions was greater than the number of non-unanimous decisions.
In 2013 the Court had 42 unanimous decisions compared to 35 non-unanimous decisions from argued cases– a margin of seven decisions. This term the Court had two more unanimous decisions than non-unanimous with 32 and 30. Although this is definitely unique, according to this metric it did not set a record for consensus.
Justice Thomas and Dissents
Justice Thomas continued to dissent more than the other justices this term even with an added ninth justice filling Justice Scalia’s seat. Although Justice Thomas’ written dissent count went down to ten this term it was still quite pronounced.
Interestingly, this term Justice Breyer who is not often known for a high level of dissents, dissented the second most frequently with seven. Justice Kagan did not dissent at all this term and Justice Gorsuch dissented once from a signed written opinion in Perry v. Merits Systems.
Over the last two terms we have had a precipitous drop in the number of cases decide by one vote margins. Last term there were two such cases and this term there were three. These terms have the fewest decisions decided by such a margin since the late 1960’s. While this too is a sign of consensus it is also an artifact of an eight justice Court where one vote splits were often not a possibility.
With Justice Gorsuch on the Court, however, there were three 5-4 decisions this term. All three – McWilliams v. Dunn, California Public Employees’ Retirement System v. ANZ Securities, and Davila v. Davis – were settled along ideological lines. As Justice Gorsuch only participated in thirteen arguments this term and three of those decisions were by one-vote margins, there is evidence we are moving back into territory where such decisions are more the norm. The figure below tracks these close vote decisions since the beginning of the Burger Court.
Not all 5-4 decisions split the justices ideologically although many do. The following graph shows the 5-4 decisions with the more liberal justices in dissent and those with the more conservative justices in dissent for the Roberts Court years.
This term there were two such cases with the liberal justices in dissent and one with conservative justices. 2014, 2011, and 2009 were the only recent terms where there were a greater number of decisions with the conservative justices in dissent than the liberal justices. The ideological decision splits this term are consistent with this trend.
Justice Gorsuch appears to fill Justice Scalia’s shoes in the conservative bloc as he aligned with Justices Roberts, Alito, and Thomas in all three decisions. Justice Kennedy authored the CalPERS majority opinion while Justice Thomas authored Davila and Justice Breyer authored McWilliams. The following figure tracks the authors of single vote margin split decisions (4-3 splits during the 2015 term) since the 2010 term.
Justice Kennedy is the only Justice with at least one such opinion each term and Justices Kennedy and Breyer often vie for the justice with the most such decisions.
With nine justices, the Court did not have to split evenly in any of their decisions. Although two cases – Jennings v. Rodriguez and Sessions v. Dimaya would likely have resulted as such, they will be re-argued in the fall on a Court that includes Justice Gorsuch.
Due to the two re-arguments rather than equally divide votes, the Court did not divide equally at all this term. This is evident in the following figure that shows the number of equal divisions as well as other per-curiam or unsigned opinions from the Court since the Burger Court years.
The lack of equal divisions might be a surprise given that the Court went most of the term with only eight justices. The justices appeared to work together to avoid this result. Even though we see decisions from an equally divided Court in years where nine justices were on the Court, due to the justices’ efforts to work together this term, such a result was avoided.
United States Success
The Solicitor General’s Office and attorneys (OSG) are often the most successful advocates in the Court. This is evident in both the OSG’s general success on the merits as well as its success in having the Court grant cert when it submits petitions. This term was an anomaly though as is displayed below.
This marks one in only a handful of terms since the Burger Court where the OSG did not win more cases representing the United States than it lost. When the OSG’s representation in other cases this term is accounted for, the losses exceed the wins. Election years may drive this result as the Justice Department is in transition with a new administration in power. The United States won in the Bravo-Fernandez, Salman, Manrique, Beckles, and Turner cases and lost on the merits in the Maslenjak, Honeycutt, Lee, Shaw, and Dean cases.
These data show this term to be idiosyncratic to be sure, although even in these respects we have seen similar outcomes in other recent years. Even if this was not the most exciting term in the Court’s history, the Court is already set for some groundbreaking decisions in the coming term. We now have several months to speculate on how these cases may be resolved.
On Twitter: @AdamSFeldman