Things We Haven’t Seen Before at the Outset of a Roberts Court Term

Justice Ruth Bader Ginsburg is traditionally one of the most active justices at the beginning of each term. It should come as no surprise therefore that she authored three of the Court’s first 13 decisions for the 2019 Supreme Court term . She tends to have the backing of the Court in these early term decisions and her majority opinions this term were no exception as all three decisions were unanimous. No justices authored separate opinions in Ritzen Group Inc. v. Jackson Masonry while Justices Thomas and Alito filed concurrences in Monasky v. Taglieri and Justice Kavanaugh filed a concurrence in Shular v. United States.  As all three decisions were unanimous, Chief Justice Roberts assigned all three to Ginsburg, the second senior most justice on the Court after Justice Thomas.  While these facets of the start of the 2019 term might not indicate anything unusual on their face, Justice Ginsburg has been particularly active this term.

Out of the first seven signed decisions this term, Ginsburg had an opinion in five of them. These include her majority opinions in Monasky and Shular along with a solo dissent in Rotkiske v. Klemm, and 5-4 dissents in Hernández v. Mesa and in McKinney v. Arizona. As neither Chief Justice Roberts nor Justice Thomas were in dissent in any of these three decisions, Justice Ginsburg assigned the two 5-4 dissents to herself.  This in turn marks the first time in her 27 terms on the Court where she authored five opinions in the Court’s first seven decisions. In fact, this is the first time any justice authored five opinions within the first seven signed decisions since at least the beginning of the Roberts Court. The Justices with at least three opinions in the first seven signed decisions since 2005 are shown below.

 

Along with her five opinions out of the first signed decisions this term, Ginsburg along with Justice Sotomayor are the only Justices since 2005 with two terms of four opinions in the first seven signed decisions of a term. Justice Scalia in 2011 is the only other Justice with one such term with four opinions out of the first seven signed decisions.

The Court has released 13 slip decisions so far this term. Along with the first seven signed decisions, the Court released three more signed decisions on February 26th and three unsigned per-curiam decisions since November 2019. Not counting Justice Ginsburg’s statement in the Court’s per curiam decision in Thompson v. Hebdon, Ginsburg authored six opinions within these first 13 decisions. This is one short of her high watermark for the 2005 through 2019 terms which she had in 2011.

 

Justice Sotomayor was the only other Justice with seven opinions in the first 13 signed decisions in a term since 2005 which she authored in the 2014 and 2017 Terms.

When we aggregate all of the opinions from the first 13 signed decisions since the 2005 Term by Justice we see that Justice Ginsburg’s high early term productivity is evident when her output is compared to those of the other Justices.

 

Justice Ginsburg’s 61 total opinions are 11 more than Justice Thomas’ 50 which comes in second among the Justices. Her 34 majority opinions are 13 more than Chief Justice Roberts’ 21 which is next most among the Justices.

Since Justice Sotomayor joined the Court at the beginning of the 2009 Term and Justice Kagan at the beginning of the 2010 Term the above graph diminishes their output by looking at a greater breadth of Terms (it does the same to Justices Gorsuch and Kavanaugh but it is difficult to extrapolate on their output due to their limited number of Terms so far on the Court). To try to account for similarities in these Justices output the next graph shows opinion output from the first 13 signed decisions since the 2010 Term.

 

The difference between Justice Ginsburg’s output during this period and those of the other Justices is not quite as substantial but is still very apparent. Ginsburg’s 44 opinions are six more than Justice Sotomayor’s 38 and eight more than Justice Thomas’ 36. On the other end of the spectrum Justice Kagan tallied a total of nine opinions during this set of decisions for the period of 2010 through 2019.

Not much is different when we focus on the first seven signed of each term since 2005.

 

With 36 total opinions Justice Ginsburg has 10 more than Justice Thomas’ 26 and 17 more than Justices Sotomayor and Scalia’s 19 apiece.  As with the previous graph, Justice Kagan is at the low end here with a total of four opinions.

While the above graphs focus on the high level of early term output from the Justices, this is not necessarily the norm. Multiple Justices have authored only one or zero opinions across the Court’s first 13 decisions in a term since 2005 as the next graph illustrates.

 

Justice Kennedy has the most terms with zero opinions across the Court’s first 13 decisions with four. He is followed by Justices Kagan and Alito as well as Chief Justice Roberts who each have two terms with zero opinions within this framework. When terms with one opinion out of the Court’s first 13 decisions are included, the Court’s leaders are Justice Kagan with nine terms, Justice Kennedy with eight, and Chief Justice Roberts with seven. These three Justices tend to minimize their separate opinion authorship and often author powerful and highly polarized decisions towards the end of each term. Many such decisions come down to 5-4 votes.

With Justice Ginsburg taking the reins authoring the primary dissents in the Court’s two 5-4 decisions so far this term, both of which split the Justices across ideological lines, we see the renewed importance she places on asserting her views in these fractures. In recent years, Ginsburg has been vocal both about Trump during the previous presidential race, and about the political role in Supreme Court decision making. Such comments led to President Trump’s assertion that Ginsburg along with Justice Sotomayor should recuse themselves from cases where the President has a role in the litigation (the President’s request regarding Justice Sotomayor relates to her dissent from a recent decision allowing Trump’s immigration policy to proceed). Such discord combined with the enhanced role Ginsburg has played strengthening the Court’s left further augments the all but certain radical changes the Court would go through if President Trump was able to fill Ginsburg’s seat on the Court with another conservative Justice.

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