It is ironic that we can consider May in a Supreme Court Term early when the term is set to complete in just one month, but that is exactly where we are. The justices have cleared 19 cases from their caseload (18 if we discount In Re: Grand Jury which was dismissed after oral argument) with well more than half of the Court’s slate of orally argued cases pending decisions. One thing that many would not have predicted (including myself) is that the liberal justices would be in the Court’s majority more frequently than the conservative justices, especially after last term, but that is exactly how this term has progressed so far. This leads to two intriguing questions. First: Why? Second: Will this trend continue throughout the term.
As to why, one reason has to do with the fact that the justices have not decided the most divisive cases this term including those dealing with affirmative action, voting rights, and student debt relief. Even with two decisions by five to four votes and three decisions by six to three votes, none of the decisions so far split the justices along ideological lines. Perhaps even more surprising, Justice Jackson only dissented once (a partial dissent) in the convoluted fractured vote in National Pork Producers Council v. Ross. The liberal justices’ strength in the majority so far this term is quite an anomaly when compared to prior terms.
Before getting to that, the first difference from prior terms is the Court’s slow pace releasing decisions. The Court is still appreciably behind its pace from all previous terms in the last 100 years as the following graph looking at the percent of the Court’s caseload still undecided by May 18th (the next day for the Court to release decisions this term) of each term shows:
Few Liberal Dissents
Due to the slow pace of decisions, each comparison to prior terms in this article normalizes the decisions by cases (generally using percentages) rather than looking at aggregate figures across the term. So far this term each of the liberal justices (Sotomayor, Kagan, and Jackson) only have one dissent each. If we look at the average dissents from each liberal justice by May 18th of each term since 2005, we see the following:
This average of one dissent for each liberal justices is well below even the 2.25 average dissents from liberal justices in the 2014 term which was the lowest in this period prior to the current term.
This seems staggeringly low although it is quite likely related to the type of cases decided so far this term.
Looking at the percentage of dissents from the liberal justices per case or the total number of dissents over the total number of cases decided by May 18th, the percentage this term is second only to the 2005 term.
The liberal justices dissented in 5.57% of their votes this term compared to the 5.38% dissents per vote in the 2005 term. The justices dissented just a bit more frequently in the 2014 term than they did this term with dissents in 5.76% of votes by May 18th in that term.
One last measure is quite telling of the beginning of this term. The following graph shows the percentage of dissenting votes from liberal justices subtracted from the percentage of dissenting votes from conservative justices by May 18th of each term:
There are several notable points that can be observed from this graph. One surprise is that the conservative justices dissented more frequently than the liberals by May 18th of any term going back to when Chief Justice Roberts joined the Court. This is surprising because conservative justices held the Court’s majority across all these terms. Notwithstanding this advantage, the conservative justices dissented more frequently than the liberal justices in five terms since 2005 prior to the current one. The only time though that the conservatives dissented more frequently than the liberal justices did this term was in 2014. The conservative justices dissented 17.83% more frequently than the liberals in the 2014 term compared with the 13.87% difference this term. On the other end of the spectrum the liberal justices dissented 19.44% more frequently than the conservatives by May 18th of the last term.
Beyond the differences between liberals and conservatives, Justice Jackson’s frequency in the majority so far this term captured my attention. With Jackson’s partial dissent in Ross, she dissented in one of the 18 decisions in cases decided on the merits so far which equates to 5.57% of her votes. Here is how Justice Jackson’s dissent rates compares with the rates from the other recent liberal justices in their first terms on the Court:
Only Justice Ginsburg dissented less frequently than Justice Jackson at 4.08% dissenting votes through May 18th 1994, dissenting in two of 49 votes.
With the Court’s most important cases, at least from a policy perspective, all remaining this term, there will almost assuredly be several 6-3 votes across ideological lines with Justice Jackson in dissent. Justice Ginsburg ended her first term on the Court dissenting in 13.3% of the decisions in the. That percentage, however, was based on 90 votes in argued cases. With far fewer decisions this term, each of Justice Jackson’s votes will weigh more heavily on her percentage of dissenting votes. With the remainder of the Court’s argued cases still left undecided, there is plenty of room for the liberal justices and Justice Jackson in particular to not only dissent more often, but to dissent more often than the conservative justices. While both of these outcomes is likely, especially based on trends from past terms, neither is a foregone conclusion. How the conservative justices’ hold on the Court and the current direction of jurisprudence will proceed is still up in the air, but based on available information, the current balance of liberal justices dissenting less frequently than the conservatives should shift with the coming decisions.
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Vote counts from the U.S. Supreme Court Database were used in calculations.
4 Comments Add yours
With the justices having more human and technological resources than ever before, why the trend of rendering fewer formal opinions? Are they becoming lazy?
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Lots of possibilities. The Dobbs leak probe likely has an impact. The Court’s personalities might as well. Lots of room to speculate. I’ll be interested to see if the justices say any more about the slowed process this term.