Stats Week: The Docket in Historical Perspective

The newest edition of The Supreme Court Compendium: Data, Decisions & Developments, by Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker, has just been released, and there’s a wealth of interesting historical information to be found in its pages. With the Court in between argument sessions and the opening of the baseball season (and its attendant statistical obsession) upon us, we thought we’d play a little Supreme Court baseball and use the Compendium‘s data and other sources to put a few of our recent StatPack figures into historical perspective. This post will examine historical trends in the number of signed opinions, while later in this series, we’ll examine 5-4 votes, total numbers of concurrences and dissents, and then put a few Supreme Court “records” into perspective.

As we note in the latest StatPack, the Court is on track to hear 70 arguments this Term, and from those – because of various dismissals and equally divided affirmances with no signed opinion – the Court will release a maximum of 67 signed opinions before the Court adjourns for its Summer Recess. Thus, if there are no additional dismissals or per curiam opinions after argument, that number would match last year’s low number of signed opinions; the new edition of the Compendium allows us to more precisely put this output in historical context.

As can be seen from this graph (compiled using data culled from the Compendium‘s Table 2-8 and our own data), if the Court ends the Term with 67 signed opinions, it will tie OT06 for the second-lowest output of signed opinions since the Court took meaningful control of its own docket following the enactment of the Judicial Act of 1925. With this Term in the number two spot, the historical low of the certiorari era occurred in the 1953 Term, which saw 65 signed opinions.

Interestingly, that Term, despite the Court’s lowered output, is one of its most famous: it marked the arrival of Chief Justice Earl Warren to the Court and, with him, the unanimous decision in Brown v. Board of Education, perhaps the Court’s most well-known opinion in its history. As the editors of the Harvard Law Review noted in the statistical recap of that Term, the landmark Brown decision, “undoubtedly occup[ied] much of the Court’s time and occasion[ed] the decrease in dispositions on the merits….” Indeed the editors were proved correct, as the 1954 Term saw an immediate 20% increase in signed opinions over 1953, and then the output held steady at about 100 signed opinions per Term for the remainder of Chief Justice Warren’s time on the Court (during his 15 years as Chief, the Court averaged 96 signed opinions per Term).

In fact, the conclusion of this Term will mark the culmination of the lowest output of any arbitrary 10-year stretch since the aforementioned beginning of the true modern era at the Court in 1926, and by quite a wide margin. Again, projecting 67 signed opinions for OT07, the Court will have produced 725 signed opinions from 1998-2007, or 72.5 per year. As recently as the 10-year period from 1979-1988, the Court was producing nearly 140 opinions per year, meaning the number of signed opinions is down by more than 50% in just 20 years.

Yet, there are indications that the last two years may represent a point of inflection of sorts for the Court (see our previous post here). Updating those details, with the Court’s most recent grants, the Court remains on pace to grant 120 cases in the time period that would typically include cased to be argued during OT08 (i.e. February, 2008-January, 2009); given that a few cases will inevitably be dismissed or decided by per curiam opinions, it’s not unreasonable to expect 110 signed opinions from that set of grants if the Court continues on this pace. Of course, hearing that many cases next Term would represent an unprecedented increase in the Court’s caseload, and seems somewhat improbable. Realistically, we can expect either the pace of grants to slow down or the Court to hold extra cases over for argument and decision in OT09, though it’s impossible to say how many.

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