Clear Polarization in Second Level Supreme Court Decision Making

Over the past five Supreme Court Terms the justices have issued 157 separate opinions from Court orders. These are cases that are not orally argued and do not receive full merits consideration. We do not necessarily know all the justices votes in these cases – only the ones the justices made public through signing onto separate opinions. Of these 157 opinions, only two include at least one conservative and one liberal justice signed onto the same opinion. Both are dissents from Justices Gorsuch and Sotomayor in criminal cases. The other 155 separate opinions split the justices ideologically or are solo authored.  The spotlight on the Court’s polarization could not be clearer.

There are three clear levels of Supreme Court decision making. The first decisions are on certiorari when the justices decide whether they will hear a case orally argued. Then the justices decide if they will issue separate opinions related to cases they will not take. This is the second level. The second level also encompasses separate opinions from emergency applications to the Court. This non-merits case docket is also referred to as the shadow docket. The third level of decision making comes from cases the Court hears orally argued and then decides on the merits.

Like votes on cert, we do not actually know the votes when secondary opinions are issued relating to cases that the justices do not decide. We cannot then say with absolute certainty that the justices are split 8-1, for instance, if one justice dissents. The clearest pictures come from orders with four dissenting justices, since if any other justices dissented, the dissent would become the majority and the decision would go in the opposite direction.

In some ways the justices’ positions in these decisions are the best ways to gauge their ideology relative to one another. In assessing separate opinion decision making we see only the justices’ truly discretionary decisions. They do not need to write anything in these cases as part of their role on the Court so they only author or sign onto these separate opinions when they feel especially compelled to do so. Since these cases are unrelated to decisions on the Court’s merits docket, none of the strategic posturing concerns are in play. With this in mind we can get a much clearer position of the justices’ actual positions on discreet issues. Steve Vladeck recently showed how this is this is the case with his analysis of shadow docket decisions where the Solicitor General plays a role.

How did the justices’ divide in their separate opinions from orders over the past five terms? The following chart shows the opinion counts from each permutation of justices including solo authorships.

As mentioned above, the only cross-ideological grouping came from the two opinions from Justices Gorsuch and Sotomayor in the cases Hester v. United States and Stuart v. Alabama.

Justice Sotomayor was the most involved justice in these separate opinions in many ways. She was foremost a participant in more opinions than any other justice across this period.  The following breaks down the justices’ separate opinion totals (the opinions they joined as well as authored) by opinion type.

Justice Thomas was right behind Justice Sotomayor in terms of overall opinion participation.  Thomas authored the most separate opinions related to merits opinions of the justices this past term and tends to be the most prolific dissenter on the modern Court.  Chief Justice Roberts and Justice Kagan were the least involved in these separate opinions of the justices that sat on the Court for the full five terms and were less involved than Justices Gorsuch and Kavanaugh who both joined the Court in the middle of this five term period.

Justice Sotomayor appears to dominate most metrics for separate opinions from orders though. Along with signing onto the most separate opinions during this five term period, she also authored more of these separate opinions than any other justice.

We can also look at the justices’ separate authorship on a term-by-term basis as the graph below depicts.

Much of Justice Sotomayor’s dominance in this practice relates to her regular dissents in death penalty cases that the Court does not hear on the merits. She has made this her mainstay in her responses to the justices’ decisions on orders and emergency applications. Separate opinions in death penalty cases come up most frequently as the graph below shows, but this is by no means the only issue the justices pore over.

Along with issues of criminal justice, where Justice Sotomayor has become the most vocal justice, Justice Thomas is deeply engaged and vocal in cases dealing with First and Second Amendment rights as well as with decisions relating to Chevron deference in the agency context.  Several areas that have drawn a mixed bag of justice separate opinion authorship from orders include election law, immigration cases, cases involving eminent domain, and cases dealing with when the Court can establish that it has proper Article III jurisdiction.

One other area relating to the justices’ participation in these separate opinions deals with the length of their opinions. The following graph shows the average word length for the justices’ separate opinions from these orders.

Justice Thomas authored the lengthiest separate opinions by far followed by Justices Sotomayor and Alito, while Justices Roberts and Ginsburg authored the shortest such opinions on average. Justice Thomas authored the longest separate opinion from an order during this period from the Second Amendment case Rogers v. Grewal (6,200 words).  The next two longest opinions came from Justice Sotomayor in the death penalty cases Arthur v. Dunn (5,572 words) and Elmore v. Holbrook (4,534 words). Rounding out the top five, Justice Alito authored the next two longest opinions in the First Amendment case of Stormans v. Wiesman (4,449 words) and the death penalty case of Murphy v. Collier (4,376 words).  All five of these lengthiest opinions came in the form of dissents.

There is much to be learned from the justices’ separate opinion practices in these cases. The justices’ ideological levelling with Chief Justice Roberts in the middle that has been described so often at the end of the 2019 term may not tell all of the story. These separate opinions, some of the only truly discretionary decisions that we get to see from the justices, show that the justices may be more polarized than ever before. Justices Sotomayor and Thomas have come out with leading voices in these cases although regarding vastly different issues. If the justices have any sway with their separate opinions from orders, they will convince their colleagues to take up these issues on cert and change the direction of the law according to their visions.


On Twitter: @AdamSFeldman

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