Third Interim Stat Pack for October Term 2018

This is a busy time for the Supreme Court, which is slated to provide decisions in 24 cases over the final two-week span of the term. This equates to over one third of its 69 argued cases with expected decisions. In the court’s last week of business before summer recess, the justices are expected to release 12 decisions, with eight still remaining.

The Supreme Court released its decision in Gundy v. United States last week, 261 days after the case was argued. This is three days longer than the court took last term with Gill v. Whitford and the longest it has taken the court to reach a decision in a case since 1993.

The justices have already written more dissents this term than in either of the past two terms. The leading justice in this category is Justice Stephen Breyer with nine dissents, followed by Justices Sonia Sotomayor and Neil Gorsuch with eight dissents each. Justice Clarence Thomas has written the most majority opinions so far with eight. He has also written the most 5-4 decisions with four. No other justice has written more than two 5-4 decisions so far this term. As I mentioned in a prior post, Thomas will set a record for himself in a term if he writes a fifth 5-4 decision.

Thomas also wrote the most total slip-opinion pages of the justices this term with 267 and the longest opinion this term with his dissent in Flowers v. Mississippi, which runs 42 pages.

The 5-4 decision coalitions look very different this term from last. With 16 of these decisions so far, the five more conservative justices (Chief Justice John Roberts, Thomas, Justice Samuel Alito, Gorsuch and Justice Brett Kavanaugh) voted together in six cases, while permutations of justices including the four more liberal justices (Justice Ruth Bader Ginsburg, Breyer, Sotomayor and Justice Elena Kagan) voted together in seven. This is quite a difference from OT 2017, when the five more conservative justices (with Justice Anthony Kennedy instead of Kavanaugh) voted together in 14 of the court’s 19 5-4 decisions, and the more liberal ones only voted together in the majority in three.

A few points are worth noting from the Justice Agreement Table. The justices with the highest agreement in full, part or judgment only are Roberts and Kavanaugh at 93 percent. By comparison the two newest justices, Gorsuch and Kavanaugh, were in agreement 72 percent of the time. The lowest agreement level is a tie between Thomas and Kagan, Sotomayor and Breyer each, at 53 percent apiece.

As usual, the Supreme Court has saved some of its biggest decisions for release in the final days of the term, including in the census and partisan-gerrymandering cases. After the final decisions of the term are released, we will have to wait until October before the court starts hearing arguments again in a new slate of cases, 37 of which have already been granted for next term, for a total of 29 arguments.

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