Do Early Term Arguments Lead to Less Contentious Decisions?

The Supreme Court is known to leave its most poignant decisions for the end of the term. The end of last term included among other decisions the release of Dobbs (abortion), Bruen (gun control), and WV v. EPA (EPA’s Clean Air Act policy). One of these decisions, Bruen, was argued in the first two months of the Court’s oral argument calendar. The others were not. In fact, an argument could be made that all of the other major decisions last term were argued after the November sitting.

This term is a little different. Several big decisions either were or are going to be argued in the first two months of the Courts calendar (note that this analysis begins in the 1917 term which is when the Court’s calendar began to start in October). These include the Merrill v. Milligan examining racial gerrymandering and the two affirmative action cases that will be argued in the November sitting.

Most cases also argued in the early months of the Court’s calendar are decided before the end of the term. Obviously Bruen was an exception last term.

If the argued cases in the Court’s early month are less contentious then perhaps fewer dissents and concurrences should be filed in cases argued in these months.

The graph below though shows that certain members of the Court and particularly Justice Stevens authored many separate opinions in cases argued across these months. The drop in separate opinions authored by the justices for such arguments though drops precipitously, as after Justice Douglas, the authors with the next most such opinions authored over 100 fewer than Stevens.

This doesn’t provide evidence of across the board separate authorship for cases argued in the term’s early months but it does show the oversized participation of some justices (justices with fewer than 50 separate opinions were not included in this graph).

Next we can look at the decisions argued during these months that led to decisions that came down to a single vote.

As the graph below shows, most of these opinions were authored prior to the current Court as the only current justices on the list are Alito and Thomas and both are at the bottom of this graph that has a cut point at ten decisions.

The part of the analysis that is perhaps most striking breaks down the courts vote differences in decisions argued in October and November against cases argued across the rest of the term (from December through April). I controlled for differences in case counts by using percentages for the vote differences rather than number of cases.

The first pie chart shows the vote difference fractions in cases argued in the Court’s early months.

The early term argument graph shows that over 15% of these cases came down to one or two votes. Contrastingly, the percentage of unanimous decisions (with nine member Courts) is just under 37%.

Surprisingly, the graph for percentage of outcomes by vote decisions for arguments running from December through April shows more harmony.

The percentage of cases decided by one or two votes is just over 13% for this set of arguments, almost two percent less than in cases argued in terms’ early months. The percentage of unanimous decisions is three percent higher at just under 40%.

The sheds some light on what we should expect to come from cases argued at the beginning of terms. Against many preconceptions the results show that these early term arguments lead to more contentious decisions than cases argued later in terms. We’ll see if the court’s decisions this term, especially with high profile arguments in the October and November sittings comport with these data or with expectations that the cases argued early in terms should lead to less contentious decisions. Also note that contentious cases for the current Court are likely going to be those with a vote difference of three or fewer votes so an analysis at the end of the term will have to factor in this change.

Historic data was compiled using the US Supreme Court Database.

You can find Adam on Twitter @AdamSFeldman and on LinkedIn here

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