Courts

Term Update: We Haven’t Seen This In Over 25 Years

What's going on with the liberal justices and their dissents?

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cartoon The Supreme Court architecture

So far this term, the liberal justices on the Supreme Court only have a combined four dissents through 26 argued and signed decisions. That is about a 5% dissent rate. For some perspective, the Court released 26 signed decisions in argued cases through May of last term. By that point, the liberal justices accumulated 26 dissenting votes or a 33.3% dissent rate. The only difference in the Court’s composition from last year to this was the addition of Justice Jackson filling Justice Breyer’s seat.

Pace

The Court is set to release its next set of decisions on June 1.  Earlier this term, the Supreme Court was off to its slowest start in releasing decisions in over the past 100 years.  Although the Court is still moving considerably slower than in past years, it has surpassed its rate of decided argued cases through the end of May compared with that from last term. The following graph tracks this rate since the beginning of the Roberts Court.

Dissents

The liberal justices – Justices Kagan, Sotomayor, and Jackson – have only dissented four times so far this term (including dissents in part) and all of those were with unique combinations of other justices. Jackson only dissented in the Pork Products case along with Justices Roberts, Kavanaugh, and Alito.  Justices Sotomayor and Kagan dissented along with Justices Barrett and Thomas in the Bittner decision. Finally, Justice Kagan also dissented in the Warhol case along with Justice Roberts (it’s a pretty scathing dissent and especially noteworthy since her frequent voting companion, Justice Sotomayor, authored the majority opinion).

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The Court has had three liberal justices this term and for the two before it.  Prior to that, there were four liberals on the Court going back to 2005.  The total liberal dissent count through May of each term since the beginning of the Roberts Court is as follows:

Next, the total vote count for liberal justices is shown below.

Since the number of liberal justices on the Court dropped to three after the 2019 term, the dissent rate as a fraction of total votes is the really interesting number (I analyzed similar data in a previous post but this time the number is only based on signed and argued decisions). That is shown in the following graph:

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This term, the liberal justices dissented at a rate of over one percent below their previous lowest rate since the beginning of the Roberts Court in 2005.  After the high number of liberal justices’ dissents last term, not to mention the large number of 6-3 decisions along ideological lines, few were expecting to see this type of statistic for the liberal justices going into the last month of the Supreme Court term.

Just for comparison purposes the six conservative justices voted in dissent 24 times so far this term which equates to an average of four dissents per justice and a rate of 15.38% dissents per total votes. The conservatives have dissented more and less frequently than this since 2005 so that rate is not particularly noteworthy.

There are still 30 argued cases yet to be decided this term and lots of room for more dissents from the liberal justices.  The cases most likely to split the justices along ideological lines including the affirmative action and election cases have yet to be decided. Still, two cases that many anticipated would split the justices ideologically, Twitter v. Taamneh and Sackett v. EPA, came down unanimously (the Sackett concurrences though read somewhat like dissents with their different legal interpretations than the one written by Alito for the majority).  This level of consensus with well over 50% of the argued and signed decisions coming down unanimously so far this term and with the low liberal dissent rate speaks to the possibility that the justices are finding ways to bridge their different views and modes of legal interpretation. Even though this trend is unlikely to hold through June, this alludes to the Court’s ability to bounce back from one of the most ideologically tinged terms ever last term.

Read more at Empirical SCOTUS…

Numbers for the terms prior to the current one were supplemented from the U.S. Supreme Court Database.

Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at adam@feldmannet.com. Find him on Twitter: @AdamSFeldman.

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