Something We Haven’t Seen in the Supreme Court Since the Civil War

The Civil War was fought between 1861 and 1865 and the Court was affected by the war like all national institutions. During the second year of the war in 1862 the Court decided 41 cases by signed decisions and in 1864 the Court decided 57 such cases.  According to the United States Supreme Court Database, these were the fewest decisions the Court rendered since 1849. If the Supreme Court decides all cases already orally argued this term along with the ten additional cases slated for argument in May by signed decisions, the number of decisions for OT 2019 will reach 56. Even with several recent terms where the justices’ opinion output dipped to historic lows, 56 signed decisions would be the fewest since 1862 and prior to the blip due to the Civil War it would be the fewest since 1849.


Unlike current terms where most cases come from the federal courts of appeals, the bulk of cases in the 1860’s came a smattering of federal courts ranging from Wisconsin U.S. District Court and California Northern to U.S. Circuit Courts for Illinois and New York (federal appellate courts that existed prior to the current system of twelve circuits).  While almost all cases currently arrive at the Supreme Court through petitions for writs of certiorari, a discretionary mechanism of appeal, all cases in 1862 were appealed by writs of error or mandamus, direct appeals, or through certified questions to the Court. Suffice it to say the Court functioned very differently in 1860’s than it does today.

This term the Court has decided 19 cases by signed opinions so far. Justice Alito has the most majority opinions so far with four followed by Ginsburg with three. Roberts is the only justice that has yet to author a majority opinion.

The Chief Justice from 1832 to 1864 (thus for two of the terms under inspection– 1849 and 1862) was Roger Taney who in 1857 authored the infamous majority decision in Dred Scott v. Sanford. Taney died in 1864 when Salmon Chase was then appointed Chief Justice.

In 1849 Taney authored the most majority opinions of the justices.


In 1862, two years before his death, Taney authored the second fewest majority opinions of the justices.


Including Taney, five justices sat on the Court both in 1849 and in 1862.  The new Chief Justice in 1864, Salmon Chase authored the most majority opinions of the justices that term.


Unlike current terms where majority opinions are generally dispersed evenly among the justices, opinion assignment in these terms in the mid-1800’s was skewed so that some justices authored the bulk of opinions leaving others with very few authorship opportunities.

So far this term three cases were decided by 5-4 split votes which amounts to 16% of the signed decisions. Nine cases so far or 47% of the signed decisions this term had at least one dissent. This marks a significant change from Supreme Court decision making historically.  In 1862, at least one justice dissented in five decisions or 12% of the Court’s cases and only one case had four dissenting votes.  In 1864, five decisions also included dissents amounting to 9% of the decisions for the term and none included four dissenting votes.  The historic frequency of unanimity is made clearer by the following chart depicting vote breakdowns for all the Court’s signed decision between 1794 and 1894.


As is evident from the chart, the disparity in decisions with unanimous votes and four dissents shows that the justices were much more averse to dissenting in the Court’s first hundred years or so.

This term the Court heard a mix of cases dealing with issues ranging from discrimination based on sexual orientation to gun rights to the release of President Trump’s tax records.  Not surprisingly, the issues the Court faced in the mid-1800’s was much different even though there are some similarities.

Looking at the 1864 term for example, the Court decided more cases dealing with jurisdictional issues related to when the Court had the ability to hear a case than any other case type.


Like the current term the Court also heard a case dealing with a discrimination claim in 1864. In that case, Drury v. Foster, the Court examined a wife’s right to mortgage separate property and the right of a mortgagee to foreclose on that property. Quite a different type of discrimination action from the cases argued in OT 2019.

Another way to examine the cases in these terms is by citation counts. In 1862, the case city most citations, Chicago City v. Robbins, has been cited in 334 combined state and federal court opinions. The figure below shows all decisions from the 1862 term cited in at least 30 court opinions.


This chart gives a sense of relative jurisprudential case importance from the 1862 term. Robbins is a torts case where the justices determined the negligent party between the city and a private owner when a third party was injured falling through an excavated portion of the sidewalk.

The differences between the modern Court and the Court the last time it decided as few or fewer cases than it will this term are readily apparent.  The ability of an issue of grave national importance, the Civil War in the 1860’s and Covid-19 currently, to force such case curtailments is a great similarity across the years as the last time the Court’s merits docket was naturally as thin as it is this term was in 1849.

On Twitter: @AdamSFeldman

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