Unusual Moves, a Slow Start, and What We Should Expect from the Remainder of the Term

April is the final month of oral arguments for the 2022-2023 Supreme Court Term and although the Court has released few decisions in orally argued cases, there are several storylines worth tracking. Beyond the slow pace of decisions, Justice Jackson is in her first term and has written the majority opinion in a single case, the unanimous decision in Delaware v. Pennsylvania.  Although we have few decisions, we can generate expectations of what we might see from Justice Jackson as the justices prepare to release the other 50 or so decisions before the end of June. The breakdown of justices’ votes in the first eight decisions on the merits is also noteworthy as we have yet to see an ideologically split vote. This article examines these aspects of this Supreme Court term and places it in a historical context.

Slowest Pace?

The last opinion the Court released in an argued case was in Wilkins v. United States on March 28. That decision marked the ninth case cleared from the Court’s merits docket although only eight led to decisions on the merits (the ninth case, In Re: Grand Jury was dismissed as improvidently granted (DIG)).  Treating the DIGed case as a decision, these nine decisions mark a historically slow pace for the Court.

As April 14th is the next day when the Court is expected to release more opinions from argued cases, this date in the marker used for tracking the pace of decisions released.  Since the Court has started its term in October for more than the past hundred years, the April 14th marker was used to track the Court’s progress for each term since OT 1922. As the graph below shows, the Court is well behind even the 20 decisions released by April 14th last term, which was a new low for decisions by that date over the last century.

Why the historically slow pace? Some have intimated that the slow start was as a result of the probe into the leaked Dobbs opinion. Beyond this explanation another possible reason is the acclimation to the Court’s newest justice and could also be as a result of multiple separate opinions emanating from many of the Court’s forthcoming decisions. There have, however, been some notable shadow docket or emergency applications that led to written separate opinions so far this term.

Dissents this term total and splits

Justice Jackson is the only justice not to dissent from a decision which is interesting in itself. In some sense low dissent counts for first year justices are commonplace, but it is unusual for the new justice to be the last justice not to dissent in a term.  The split of the justices’ votes in the eight decisions rendered on the merits is not what many expected. With Court’s composition of six more conservative justices with three more progressives one might surmise that the justices would likely split down these lines. This hypothesis is only accentuated based on the large fraction of 6-3 decisions last term.

There justices have yet to split along these lines even though there have been two 5-4 splits and one 6-3 justice split vote.  Currently, five justices sit with one or fewer dissents while the other four justices have two dissents. Surprisingly, especially based on last term, both Justices Kagan and Sotomayor are in the group of five justices with one or fewer dissents along with Justices Jackson, Roberts, and Kavanaugh.  Chief Justice Roberts also surprisingly was more frequently in the majority with the more progressive justices in decisions so far this term than with several of his more conservative colleagues on the Court.

While this trajectory was unexpected it is not likely to last.  The Court has yet to release any decisions in its the more politicized cases, which are expected to draw 6-3 splits.  The affirmative actions cases, for instance, may well lead to this type of vote. Also, even though Justice Jackson has not dissented from a decision in an argued case, this does not mean that we should anticipate her to be an infrequent dissenter more generally as she has already dissented from multiple petitions on the Court’s shadow docket.

First opinions

Even though the justices cleared nine cases from their argued case docket, only five justices have authored majority opinions. Justices Alito, Thomas, Roberts, and Kavanaugh are the four justices that have yet to author a majority opinion. This does not mean though that we should expect fewer decisions from these justices across the term since the norm is for each justice is to author approximately the same number of majority opinions as all other justices by the completion of each term.

Since there are only eight majority opinions so far this term, there are few data points for analysis. Still, we can track some differences between those opinions already written including opinion length and the complexity of language in each opinion.

Justices Gorsuch, Sotomayor, and Barrett each authored two majority opinions so far while Justices Jackson and Kagan each authored one. The longest majority opinion was from Justice Kagan in Helix Energy followed by Justice Jackson’s opinion in Delaware v. Pennsylvania.

The next set of comparisons have to do with each opinion’s language complexity based on a dictionary of complex terms. This is used to measure reading ease of each opinion. Although much of the verbiage in each opinion relates to words specific to each case, some of the language measured is likely distinct to each justice’s lexicon.  The most linguistically complex decision this term (shown below the word counts) came from Justice Barrett with Justice Jackson’s opinion in Delaware v. Pennsylvania tracking closely behind.

What to expect from Justice Jackson

Justices in their first terms are often only settling into their new positions and tend to develop distinct decisional patterns after one or more years as a justice.  Two related areas that justices often acclimate to over these first few terms are dissents as a fraction of their overall opinion counts and their number of total majority and separate opinions drafted. First a look at dissents as a fraction of total opinions written.

Of the eight justices returning to the Court from last term, six authored fewer dissents as a fraction of their overall opinion count in their first term compared with subsequent terms.  Only Justices Thomas and Kavanaugh authored a larger fraction of dissents in their first terms.

As for total opinions each term we see a similar trend.

Almost all the current justices authored more decisions in subsequent terms than they did in their first term or two on the Court.

These two comparisons, percent dissents and opinion count for each justice continuing on the Court from last term, show how Justice Jackson’s behavior in her first term on the Court may not be wholly indicative of what we should expect from her in terms to come.

One final comparison between justices has to do with each of their first majority opinions. The comparisons are the same as above tracking word counts and language complexity.

As these graphs show, Justice Jackson has a much wordier opinion in Delaware v. Pennsylvania than any of the other sitting justices’ first majority opinions. Justice Jackson also has the most linguistically complex opinion of the bunch.

Concluding Thoughts

In a mainly uneventful term so far, there are several surprisingly interesting trends to track. The Court’s slow pace this term is only one of these facets. Beyond this, Justice Jackson’s involvement in decisions and lack of dissents, while unique, are not likely to continue. We should though expect her to have more of a limited involvement in decisions this term than we will have from her in terms to come.

As the justices will inevitably split along ideological lines in the coming decisions we should soon see Justice Jackson and the other progressive justices more frequently in dissent, especially in 6-3 split votes. Even though the justices’ votes so far this term and consequent groupings surprised many Court watchers, we should see a regression back to expectations formed about the Court’s fractured decision making along ideological lines and the term edges forward towards its likely endpoint at the conclusion of June 2023.

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