Guess Which Justice is Taking the Most Important Cases and Other Details from Last Term

To start, some of you must be asking how one measures “important cases,” especially when there is no objective measure for this.  These measures might also show the difficulty in each case or case complexity, but “most important cases” seem to encompass these other adjectives.  Still, measuring the most important cases might seem a subjective matter. This is a valid concern so I don’t use one measure to get at this phenomenon but rather multiple measures and look for convergence. If several things point in the same direction, we are more likely to get at this point of interest even if a single variable does not (if it looks like a duck and quacks like a duck, it is probably a duck).  For this post, I analyzed several variables relating to the last Supreme Court Term without any expectations of a convergent result. This made the finding less expected on one hand, while on the other hand (and thinking about this after the fact) the result is not entirely surprising.

I started out by measuring a few case-level variables from the last term with the intention of comparing cases along a few dimensions. These measures are used in a variety of studies, mainly as control variables in these articles.  I then tied these to the majority author of each case to see which justice(s) were handling the cases at the top of each measure.  These measures include merits and cert amicus briefs, the total word counts of merits briefs, and the citations to Supreme Court cases in merits briefs.

Each of these variables has distributions. While some of these variables don’t vary much, others vary quite a bit. Here are two examples. The first is the number of words per merits brief. Since the Supreme Court Rules lay out a maximum word count for merits briefs (13,000 – see pages 45 and 46 here), one might expect most briefs to teeter right about at this limit. The one exception is for joined cases with multiple dockets where the petitioner or respondent is the same across the dockets. Then the word count may exceed this limit (in cases with multiple briefs for a side I averaged the word and citation counts between the briefs).

Most briefs not surprisingly closely abutted this limit. The main exception was the petitioner’s brief in Collins v. Yellin which runs just under 20,000 words. This is one of those instances with multiple dockets in the same case.

When we look at the distribution of citations to Supreme Court opinions in each brief the spread is much greater.

The greater distribution for this variable has to do with the fact that there is no maximum number of cases cited in a brief.  Many cases with a high number of cites in one brief also have a high number of cites in the other merits brief and vice-versa, although this does not hold in every instance.  I’ll get to more on this later in the post.

Bringing the focus back to the justices, while there is no one way to measure the most important cases we can gain some insight by the number of folks on the periphery of the case that have an interest in it.  Which justice tends to take these cases? If you guessed Chief Justice John Roberts, you would be correct. Let’s start with cert stage amicus briefs and look at these based on the justice who wrote the majority opinions in the cases with the most of these briefs.

“PC” at the bottom refers to per-curiam or opinions by the Court without a majority author. The 53 cert stage amicus briefs filed in cases with opinions later authored by Roberts dwarfs the 36 in cases with opinions by Justice Breyer and 17 in cases with opinions by Justice Alito.  Perhaps there will be a difference when we look at merits stage amicus briefs. 

Alas no. Like the finding for cert stage amicus briefs, Roberts’ cases with 227 associated amicus briefs on the merits include a far greater number than the 173 in cases with majority opinions by Breyer, and the 96 such briefs in cases where Thomas was the majority author.

This holds for other areas as well. Take cites in merits briefs to Supreme Court decisions.  This measure gets at the extent of cases relied on in the briefs, and with this, it provides a measure of the strength of precedent in the briefs.  When we look at this measure by justice, the numbers are packed more tightly together than what we saw for the other measures, but this still shows the same trend.

The 533 unique Supreme Court cases cited in briefs with opinions later authored by Chief Justice Roberts still outdoes the 487 in cases with majority opinions from Justice Thomas and the 429 in cases with opinions by Justice Gorsuch.

Moving beyond this measure, we see much of the same with brief word counts.  Even with the generally similar number of words in parties’ merits briefs across the term, the results by justice still break down in a similar fashion.

Roberts’ cases lead the pack with 175,656 pages of merits briefs.  Brief page counts for cases with majority opinions authored by Justice Thomas lag more than 5,000 words behind with a total of 170,503 words. 

One last measure, with nothing to do with the briefs, leads to a similar result. The next graph looks at the total number of separate opinions in cases decided by each justice. This presents divergences of the justices’ views of each decision and relates the complexities of each case and subsequent difficulty in reaching ultimate consensus among the justices.  Even concurrences express some measure of difference from majority opinions.

Here too we have a similar result. CJ Roberts’ decisions had 12 separate opinions associated with them. After Roberts, Justice Kagan’s opinions had 11 separate opinions associated with them and Justice Alito had ten separate opinions associated with his majority opinions.

The above measures all insinuate Roberts decided cases during the 2020 term with more generalized importance and complexity than cases decided by the other justices.

These measures can also give a picture of how cases from the 2020 term stack up.  The next graph shows the number of cert stage amicus briefs by case.

Americans for Prosperity Foundation v. Bonta with 23 cert stage amicus briefs and Google v. Oracle with 16 surpass the number of such briefs filed in other cases.  17 cases across the term had no cert stage amicus briefs at all. Now to merits amicus briefs.

Fulton v. City of Philadelphia had by far the most such briefs with 82. The Google v. Oracle case had the next most with 59. The only case with zero merits amicus briefs last term was Salinas v. United States Railroad Retirement Board.

Looking at the number of Supreme Court cases cited in the briefs we see a few cases far out in front.

The most citations came in briefs in BP v. Mayor and City Council of Baltimore with 163.  The case with the next most was Edwards v. Vannoy with 125.

Finally, we can look at these measures and compare them by the merits briefs for each side in the same cases.  When we look at this differential for merits amicus briefs per side in each case we get the following:

The biggest difference was in the Americans for Prosperity Foundation case where the petitioner side had 36 more amicus briefs filed than the respondent side.  On the other end, the respondent side in Mahanoy had 17 more amicus briefs filed than the petitioner side.

Next, we have at the difference in citation counts in briefs per side

The case with the biggest differential in Supreme Court cites in merits briefs was U.S. Collins with 42 more unique Supreme Court cases cited by petitioners than by respondents. On the other end Garland v. Dai saw 40 more cites in the respondents’ briefs than in petitioners.

One last and unrelated measure tracks the United States’ participation in cases across the term.

The United States played a role in all but two cases orally argued during the last term. It participated the most times as the respondent on the merits with 15 appearances compared to the 13 as the petitioner on the merits.  The only cases without US participation were Carney v. Adams and AMG Capital v. FTC.

While the measures might all be interesting, each tells a different story. They allow for comparisons between cases that aren’t apparent simply by reading through briefs and opinions. They also allow us to evaluate the work performed by each justice and give us measures for comparison. As for the justices, as I mentioned earlier, each individual measure in a vacuum might not say much. The aggregated results though show that Roberts, very possibly by his own doing since he assigns the majority opinions in cases where he is in the majority, took the most important cases across various, mostly unrelated measures.

On Twitter @AdamSFeldman

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