Do Dissents of the Past Foreshadow Dissents on the Current Court?

Many dissents and powerful ones. That is what we are inevitably going to see at the end of the Supreme Court term as the justices tend to have strong views when dealing with such hot-button issues as those on the Court’s plate.

We have many examples of this from the past. One is Rucho v. Common Cause, decided at the end of the 2018 Term. Justice Kagan’s dissent ended with:

“Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.”

We can also look at Justice Thomas’ fiery dissent in Obergefell where the justice wrote:

“The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic.”

This language provides a window into current justices’ dissent practices. But how do the justices today fit into the larger dissenting context?

First a look at the most prevalent dissenters on the Court. While Scalia had some of the fiercest of dissents in recent years, he was not a top written dissenter in terms of dissent count.

Based on numbers provided by the Supreme Court Database, the justices with the most written dissents since 1946 are Justices Stevens, Douglas, Brennan, Black, and Marshall. Justice Stevens is the only justice in the mix who was on the Court in the 2000’s. This makes sense since the Court generally released 150 or more slip decisions a term between 1955 and 1988.  The Court’s number of written decisions a term plunged after 1988 when Congress passed the Supreme Court Selections Act nearly eliminating all mandatory appeals to the Court. The 1988 term was the last one where the Court decided more than 150 cases.  The 1997 term was the last where the Court decided more than 100 cases. Stevens was the third longest sitting Supreme Court Justice when he retired after 36 terms. The fact that he was a liberal on a mainly conservative throughout his career on the Court helps explain his high dissent count.

Since the Court’s number of written decisions was so much greater in the past, the total number of written dissents may not be the best way to look at a justice’s written dissent output. We can normalize this number by dividing a justice’s total number of votes in cases with written decisions by the number of written dissents. When we look at the justices with the most dissents per vote, we get the following graph:

Justice Harlan II dissented most frequently with one dissent for every 5.665 votes. Harlan is followed by Stevens, Douglas, and Frankfurter.  Two current justices, Thomas and Breyer also make appearances on this graph.

If we look at the justices that dissented least frequently we see the following:

Several current and recent justices make this chart including Kagan, Kennedy, Kavanaugh, and Roberts.

We can use the same metric to see which justices write dissents most and least frequently. This graph removes Justice Barrett because she was only on the Court so far for one term prior to the current one.

Interestingly while Thomas had the most dissents of the current justices, Breyer has been just a bit more of a frequent dissenter than Thomas who already sat on the Court for three more terms than Breyer.

Another way to view the justices’ practices comparatively is to look at their dissents per term on the Court. This shows the following:

The current justice with the most dissents in a term is Justice Thomas with 19 in 2014. Next is Thomas in 2004 and Breyer in 2008 both had 14; Thomas in 2002 with 13; and Breyer in 2000, Alito in 2014, and Thomas in 2019 all with 12 written dissents.

This analysis obviously doesn’t measure the strength of dissents or the power of language used, but it does give a sense of what type of output to expect from the current justices. The justices are not likely to continue on this track from the past in coming terms as the Court’s new 6-3 conservative makeup will almost definitely shift the balance of written dissents moving forward.

Find Adam on Twitter @AdamSFeldman

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