The Beginning of the 2019 Term and How It Stacks Up

June is traditionally the month when the public focuses on the Supreme Court.  On this note, many of the Court’s most prolific and politically tinged decisions in recent years were rendered in previous Junes. These include Rucho v. Common Cause and Department of Commerce v. New York (the census case) last term, Janus v. State, County, and Municipal Employees and Trump v. Hawaii the previous term, and Trump. v. International Refugee Assistance Project the term before that. Whole Woman’s Health v. Hellerstedt was decided in June as was Obergefell v. Hodges, and King v. Burwell.  By contrast relatively overlooked decisions are rendered in the early months of each term. These often include a plethora of unsigned decisions. This post looks at differences in decisions early in terms (between September and December) and later in terms (between January and June).

One way to gauge case importance and the justices different perspectives in cases is through the difference in votes between the majority and dissent in a case.  Although not universally the case, decisions that cause less of a split between the justices often do not generate the same kind of publicity as cases that generate precipitate rifts among the justices. Between the 2005 and 2018 terms, the average vote split across cases is noticeably different early and late in terms.

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While many of the terms show average vote differences between September and December at eight votes or more (with one or zero dissents) signaling primarily 9-0 decisions, the differences are much smaller for the latter part in terms, pointing to much greater dissensus among the justices. Of the three decisions rendered so far during the 2019 term two were 9-0 decisions and one, Rotkiske v. Klemm, was 8-1 with Justice Ginsburg dissenting.

Separate opinions like Justice Ginsburg’s dissent are entirely discretionary decisions written by the justices. The justices concur and dissent much frequently later in terms but there is some variation between justices in this practice.

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Some justices including the most recent additions to the Court have yet to file a separate opinion between September and December of a term.  One reason for this discrepancy in the number of dissenting justices and separate opinions early and late in terms has to do with the time the justices take to come to their decisions. There just is not that much time between September and December and so the justices often take longer periods between argument and rendering decisions later in the terms.  We can examine this by majority author to see some of these differences (the first numbers are the amounts of time and the numbers in parentheses are the number of decisions these average times are based on).

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No justice took less time between argument and decision between September and December than they did between January and June.  Some Justices differences like those for Justice Kennedy are quite extreme while others like those for Justices Ginsburg and Sotomayor significantly are less so.

Focusing on the justices, some are also more active majority opinion authors early in terms than others.

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The numbers indicate the percentages of the total number of majority opinions authored by each justice between September and December and between January and June between the 2005 through 2018 terms.  These numbers only reflect the relative number of majority opinions authored by the justices for the specific periods of time and not across each term.  Most opinions early in the terms are unsigned (and known as per curiam decisions).  Unsigned decisions dip 30% later in the terms relative to signed opinions.  Justice Ginsburg is the only justice with over 10% of the early term opinions.  She also authored almost 5% more early term opinions than the justice with the next most such opinions, Chief Justice Roberts.  Neither of the newest justices on the Court, Justices Gorsuch or Kavanaugh, have yet to author a majority opinion between September or December of a term (including during the 2019 term).

Even though the justices write fewer separate opinions at the beginnings of terms, some justices are more active in this regard than others.

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Justice Alito, for instance, only authored 1% of his separate opinions in the early months of terms and Justice Thomas authored 3% of his separate opinions in early term months. Justice Ginsburg by contrast authored almost 6.5% of her separate opinions between September and December of terms between 2005 and 2018.

Looking across the history of the modern Court, and even though the justices’ total majority opinion output has declined precipitously overt time, the justices’ production has declined early in terms relative to later in terms.  While the justices total majority output has declined by term as the number of opinions they release each term diminished from over 150 to between 60 and 70, the relative number of opinions they release in September through December compared to January through June has declined as well.

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In the past several terms, the justices have only released three to six opinions before the new calendar year. This accounted for less than ten percent of the Court’s total majority opinion output in each of these terms and was a far cry from the 50 majority opinions released between September and December in the 1967 term, constituting over 25% of the Court’s total output.

With three opinions released in the first few months of the 2019 term, the Court is on pace with its past several terms.  Justices Sotomayor and Thomas authored the two signed opinions (the third opinion was unsigned) and Justice Ginsburg filed the lone separate opinion in any of these three cases. While this might seem like a slow start to the term this appears to be more of a reflection of the justices needing more time to reach decisions, especially when decisions are not unanimous.  Looking forward to the next several terms, it will be interesting to see if other justices are assigned opinions at these early points in terms or if this remains a practice relegated primarily to only a certain justices on the Court.


On Twitter: @AdamSFeldman

 

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