The Court’s Decision Making Through January 2021

The addition of three justices in four years under President Donald Trump along with a year of Covid-19 has slowed the Supreme Court’s business. So far this term, we can note that the Court is in the midst of a downturn in terms of the number of opinions it decides by the end of January every year.  While the Court averaged nine opinions in argued cases per term in the current and each of the past nine terms, only six signed opinions were released through the end of January 2021.

Since OT 2011, the justices authored the most signed majority opinions through January of a term in OT 2011 with 15. The least majority opinions were authored in OT 2019 with three.  2016 was the only term during this period (of terms through January) with no separate opinions. The most separate opinions authored during this period was in 2011 with 17.

So far this term Justice Alito authored two majority opinions, and Justices Breyer, Kavanaugh, Sotomayor, and Thomas each authored one opinion. The justices also authored a total of five separate opinions so far this term but only one was a dissent (Justice Alito authored an opinion concurring in the judgment in part and dissenting in part in Texas v. New Mexico.)

Justice Sotomayor authored the most opinions in the aggregate through January of each term over the last ten terms with 28.  She also authored the most separate opinions with 15.  Justice Ginsburg authored the most majority opinions through January of each term with 17.  Justices Kavanaugh and Gorsuch, the two most recent justices on this chart both authored the fewest total opinions with two apiece.  Kavanaugh has yet to author a separate opinion through January of a term and Justice Gorsuch has authored the fewest majority opinions (aside from Justice Barrett) with one.

The Court experiences a high volume of unanimous decisions early in each term.  This is generally because many of the more contentious cases are argued later in a term and contentious cases argued earlier in a term tend to take more time to decide. This leads to fewer dissenting votes earlier in each term. We can gauge the contentiousness of the decisions the justices tend to author early in a term by the fraction of dissenting votes per majority opinions.

Breyer and Kennedy are the only justices with a majority opinion authored to dissent vote ratio of one or more. Alito has the smallest ratio on the graph with .143 dissenting votes per majority opinion and since no justices have dissented in an early term opinion authored by either Justices Gorsuch or Kavanaugh, both of their ratios are zero.

The Court conducts the majority of its decision making between February and June of each term. Nonetheless there has been a notable dip in the number of majority opinions the justices’ author through January of each term. Even with few early term decisions, there are distinct patterns in each of the justices’ behaviors. Some author more majority opinions, some other more separate opinions, and some author both.  Since Justices Roberts and Kagan often author contentious decisions later in the terms, their rates of majority authorship early in the terms are slim.  Justice Kennedy followed a similar trajectory while on the Court.

We have yet to see Justice Barrett participate in a signed opinion of the Court.  Barrett’s predecessor, Justice Ginsburg, was one of the most active justices early in each term. While we might not expect the same early term output from Justice Barrett, we will have to wait until next term to see how involved Justice Barrett is in the Court’s early term decisions.

On Twitter: @AdamSFeldman

Be sure to check out The Juris Lab. A new project going live February 8th, 2021.

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