Supreme Court

The Supreme Court has handed down 3 unanimous decisions in the last 2 days, which sounds rather remarkable to me. I looked around and it seems that this has become more of a trend in recent years.  Jonathan Adler wrote about it yesterday here.  Here are the highlights.

The Supreme Court has decided 69 cases after oral argument so far this term. A full two-thirds of these decisions, 46, have been unanimous in the judgment. Even if the court splits 5 to 4 in the four cases that remain, the court will still have decided 63 percent of its cases without dissent this term.  Such a degree of unanimity is unheard of in recent years, as I noted here.  The last time the court was unanimous in the judgment in a majority of cases was OT2005, and then the court only hit 55 percent.

the court continues to accept certiorari in a smaller number of cases.  Thirty years ago the court might decide 150 cases per term.  This year there will only be 73 cases decided after oral argument.  As the court’s docket shrinks, the cases that remain tend to present the most difficult legal issues.  This court rarely reaches out to accept certiorari petitions, focusing its efforts in areas where there are genuine circuit splits.  And if issues have split lower appellate courts, they are more likely to provoke disagreement on the High Court.  Nonetheless, we see a court unanimous in the judgment over 60 percent of the time.

As the percentage of unanimous cases has gone up, the percentage of cases decided 5 to 4 has declined, but not as much. Thus far the court has split 5 to 4 in only 9 of 69 cases, or 13 percent of those decided after oral argument, but the justices are almost certain to be closely split in some or all of the cases that remain.  Still, assuming all four of the remaining cases come down 5 to 4, only 18 percent of the Court’s cases this term will have been decided by one vote, which will be the smallest percentage of 5-4 cases since OT09.

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