With 43 opinions released, the Court has now released just over half of the opinions it will release for the term. Lets take a look at some of the statistics.

Number of Opinions: 43 cases
Per Curiam: 7 cases (16%)
9-0: 19 cases (44%)
8-1: 1 case (2%)
7-2: 4 cases (9%)
6-3: 5 cases (12%)
5-4: 7 cases (16%)

I read this article from the AP wires about the apparent unanimity during this term and they summed up the term fairly well. There has been quite a bit of unanimity on the Court thus far, but the most divisive opinions usually come down late in a term. To quote them:

This year, the justices have yet to hand down rulings in three cases that were argued in October and November, sure signals of contention.

I’m not so sure about that. Last year, the Court issued 6 opinions that took 120-160 days to be decided (remember, the average was around 92 days).

Case # days decision opinions
US v. Rodriquez 125 days 6-3 2; Alito(m), Souter(d)
Gonzalez v. US 125 days 8-1 3; Kennedy(m), Scalia(c), Thomas(d)
New Jersey v. Delaware 126 days 6-2 3; Ginsburg(m), Stevens(c/d), Scalia(d)
Morgan Stanley v. Public Utility 128 days 5-2 3; Scalia(m), Ginsburg(c), Stevens(d)
Hall Street v. Mattel 140 days 6-3 3; Souter(m), Stevens(d), Breyer(d)
Quanta Computer v. LG Electronics 145 days 9-0 1; Thomas(m)

There were another 6 opinions that took 160-200 days to be completed.

Case # days decision opinions
Dada v. Mukasey 161 days 5-4 3; Kennedy(m), Scalia(d), Alito(d)
Kentucky Retirement v. EEOC 162 days 5-4 2; Breyer(m), Kennedy(d)
Medellin v. Texas 167 days 6-3 3; Roberts(m), Stevens(c), Breyer(d)
Washington State Grange v. Washington Republican Party 169 days 7-2 3; Roberts(m), Thomas(c), Scalia(d)
Boumediene v. Bush 190 days 5-4 4; Kennedy(m), Souter(c), Roberts(d), Scalia(d)
Department of Revenue of KY v. Davis 197 days 7-2 7; Souter(m), Stevens(c), Roberts(c), Scalia(c), Thomas(c), Kennedy(d), Alito(d)

..And two opinions that took over 200 days to be decided.

Case # days decision opinions
US v. Williams 202 days 7-2 3; Scalia(m), Stevens(c), Souter(d)
US v. Santos 232 days 5-4 4; Scalia(p), Stevens(c), Breyer(d), Alito(d)

The AP article generally describes ‘contention’ as the presence of 5-4, 6-3, or 7-2 opinions. In that sense, cases that take longer than the average are ‘contentious’ but I was surprised to see so few 5-4 opinions. Out of the 14 cases that took over 120 days to be decided (a month more than average), only four were 5-4 splits and a plurality were 6-3 and 7-2 decisions.

The sheer number of opinions also doesn’t lend itself to the idea that ‘late’ cases are more contentious than other opinions. Last year, there were 186 opinions issued in all cases (6 Per Curiam, 68 majority, 44 concurring, 11 concurring-in-part and dissenting-in-part, 57 dissenting) and an average of 2.5833 in each case. These cases were generally on the higher-end of normal.

Which Justices authored opinions in the ‘latest’ cases?

Justice # opinions
Roberts 4
Stevens 7
Scalia 9
Kennedy 5
Souter 5
Thomas 4
Ginsburg 2
Breyer 4
Alito 4

If you look only at cases that took over 160 days:

Justice # opinions
Roberts 4
Stevens 4
Scalia 6
Kennedy 4
Souter 3
Thomas 2
Ginsburg 0
Breyer 3
Alito 3

Justice Souter has developed a reputation for being taking his time authoring opinions, something that has lead several court-watchers to assume that he has written an opinion if it takes longer than usual. Based on these numbers though, he doesn’t seem to be much slower than anyone else. In February, I crunched some numbers on this but didn’t go as far as I could have. I updated those statistics and I’ll reproduce them below.

I looked at the number of days between argument and opinion when a Justice wrote for a unanimous Court with no separate opinions:

Justice OT08 OT07 OT06 Avg.
Roberts 22, 51, 30 28, 84 43
Stevens -
Scalia 48 48
Kennedy 154 154
Souter 83, 110 55 56, 63 73
Thomas 70 56, 145, 85 49, 85 82
Ginsburg 47 57, 23, 35 48, 55 44
Breyer 82 56, 47 62
Alito 50, 97 104, 75 63, 120 85

Average: 61.15

He doesn’t seem drastically slower than any other justice, but he was above the average. Justice Ginsburg pulled down the average quite a bit by writing 6 opinions and averaging 44 days.

Once again, I’ve gotten off-topic. Cases at the end of the term tend to be slightly more ‘contentious’ than most but that doesn’t necessarily mean that we should bank on any one being a 5-4 opinion. In fact, the case that took the third longest to be decided last year, Department of Revenue v. Davis, was a 7-2 decision and likely only took so long because there were seven different written opinions. Even then, five of those opinions were less than 3 pages long- Stevens(c): 3 pages, Scalia(c): 2 pages, Thomas(c): 2 pages, Roberts(c): 3 sentences, Alito(d): 1 sentence).

Its hard to speculate on this term’s ‘late’ cases. From October, Arizona v. Gant is outstanding and from November, Melendez-Diaz v. Massachusetts and FCC v. Fox (that information is from an April 1 post on SCOTUSblog, but for some reason the post was taken down. It was here).

Those are some moderately-high-profile cases. Gant focuses on an interesting Fourth Amendment question, Melendez-Diaz centers on the confrontation clause, and FCC v. Fox is the high-profile ‘fleeting expletives’ case. It isn’t hard to imagine each of those being decided by a close 5-4 margin, so my analysis might prove to be totally wrong for this year. Sorry?


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