A common refrain lately within circles interested in the Supreme Court has to do with the Court’s diminishing (or diminished) workload. The Court clearly has taken fewer cases in recent years than it did farther in the past. The 53 signed opinions by the Court for the 2019 term marked the lowest opinion total in well over 100 years. One explanation for this is that the justices spend more time on each individual case. The growth in opinion length over time is notable, although the increase has not been consistent (see Black and Spriggs II for more). Another way that the justices spend more time per case is by writing more secondary opinions. Epstein, Landes, and Posner capture the dramatic rise in the number of dissents over time in their book The Behavior of Federal Judges. Even with this change in the Court’s workload over time, the workload between the justices is not and has not been equal. Some write more opinions; others write longer opinions. Some write more each term while others write less. This post looks at the justices’ relative workloads over the past five terms (from OT 2016 through OT 2020).
The first thing that is evident from the justices’ opinion writing is that the amount of writing is not evenly distributed among the justices. A typology can be created of three types of justice opinion writers. Type I are the justices that write few opinions overall but generally long majority opinions. Type II are justices that write a medium amount of generally lengthy majority opinions. Finally, Type III justices write many total opinions which vary in length from short to lengthy. The first graph shows an example of all three types of justice based on the number of total opinions they wrote for each of the five terms.
The next graph shows the number of total opinion pages each of these three justices wrote each term.
This graph fits the typology as Alito had the medium number of opinions but the most total pages. Thomas wrote the most opinions but was below Alito for total number of pages. Finally, although Roberts wrote lengthy majority opinions, he was below both Alito and Thomas for total opinions and total pages because of his few, typically pithy secondary opinions.
With this typology in mind, we can survey the aggregate terrain across justices for the five terms. In the next set of graphs, the top one shows the number of pages divided by the number of terms each justice sat on the Court between the 2016 and 2020 terms. The lower graph shows the total number of slip pages from each justice not normalized by terms on the Court.
Alito has both the most total pages at 1,565 and pages per term at 313. Thomas comes in next for pages per term and total pages. Gorsuch has the next most pages per term even though he is below Sotomayor for overall pages. This is because Gorsuch was not on the Court for the majority of the 2016 Term. As Barrett only began on the Court last term, she has the lowest number of total pages and pages per term.
The picture looks a bit different when we look at the secondary opinion pages by justice normalized by the number of terms each sat on the Court.
Thomas and Alito have the most pages per term with 185 and 167 pages respectively. The justices can be broken into two groups in this graph. Thomas, Alito, Sotomayor, Gorsuch, and Breyer all fall to the high end of number of secondary opinion pages per term. Kavanaugh is in the middle, while Ginsburg, Kagan, Roberts, Barrett, and Kennedy make up the second group on the low end of the graph.
This still begs the question of what each justices’ fraction of majority opinions is to total opinions written.
Kennedy averaged the most majority opinions of all the opinions he authored at 84%. Thomas who authored the most secondary opinions had the lowest average of majority opinions to total opinions at 32%.
The next set of graphs probes the number of opinions written by the justices rather than opinion pages. The top graph shows the total number of opinions per justice while the lower graph is normalized by the number of terms each justice sat on the Court.
Thomas wrote the most opinions per term and overall opinions. His overall count of 144 far surpasses the next justice, Sotomayor, who authored 98 opinions during this period. Thomas’ 28.8 opinions per term is also much greater than the counts for the next two justices. Sotomayor averaged 19.6 opinions per term and Gorsuch averaged 18.8 opinions per term. Aside from Barrett who only sat on the Court last term, Roberts and Kagan had the fewest opinions per term with 10.6 and 9.4 respectively.
Going back to the original typology, some of the justices write longer opinions even though they write fewer opinions. This is shown below for all opinions authored by each justice.
While Justices Kagan and Roberts authored fewer opinions than most of the other justices per term, they averaged the longest opinions at 16.8 pages per opinion for Kagan and 16.6 pages per opinion for Roberts. Ginsburg and Thomas had the fewest pages per opinion with 10.1 pages per opinion for Ginsburg and 9.5 pages per opinion for Thomas.
Lastly, there were several outliers each term where opinions ran much longer than the averages. The longest opinions per term are as follows: the longest opinion for the 2020 term (and longest overall for the five terms) was Alito’s concurrence in Fulton v. Philadelphia at 77 pages; for 2019 the longest opinion was Alito’s dissent in Bostock v. Clayton County at 54 pages; in 2018 there was a tie for the longest opinion between Gorsuch’s concurrence in Kaiser v. Wilke and Thomas’ dissent in Flowers v. Mississippi which both were 42 pages long; the longest opinion in 2017 was Alito’s majority opinion in Janus v. AFSCME at 49 pages; in 2016 there was also a tie between Kagan’s majority opinion and Alito’s dissenting opinion, both in Cooper v. Harris which both ran 34 pages apiece.
While this should provide a handy snapshot of the justices’ workload over the past five terms, more longitudinal analyses tackling this question could be quite telling of the changes in the Supreme Court’s workload over time.
On Twitter: @AdamSFeldman