The 2016-17 Term: Some More Impressions

Last August, a SCOWstats post examined three aspects of the just-completed 2015-16 term: (1) the number of concurrences and dissents per decision, (2) the number of days between oral argument and decision filing, and (3) the number of pages per decision.  In all three instances the post reported a sizeable increase over the numbers from 2014-15, and today we return to these topics to determine how 2016-17 measures up against 2015-16.

Frequency of Separate Opinions
The frequency of concurrences and dissents interests court watchers for a number of reasons, including the impact of these separate opinions on the other two issues before us—the time taken to file decisions and the length of these decisions.  Back in September of 2014, for example, a divided court adopted new “internal operating procedures” that sought to accelerate the filing of decisions by, among other things, discouraging concurrences and dissents.  If this was the intent, the surge in the number of separate opinions per decision in 2015-16 could not have pleased the court’s majority—and raised the question of what would happen in 2016-17.  As shown in Table 1, the number of concurrences and dissents per decision declined, slightly, compared to the highwater mark of 2015-16, but the average of 1.58 separate opinions per decision in 2016-17 remained far above the average for any other year in the two decades covered by the table.

(click on graphs and tables to enlarge them)

Time Between Oral Argument and Decision Filing
Regarding the number of days taken by the court to file decisions following oral argument, the average has bounced around a good deal in recent years.  After peaking at 162 days in 2013-14, the average plunged to 112 days in 2014-15, suggesting that the new “internal operating procedures” were having the effect desired by the justices who drafted them.  However, the averages for the next two years (136 days in 2015-16 and 132 days in 2016-17) are roughly half way between the extremes posted during the two preceding terms, and we will have to see if subsequent years establish that an average in the neighborhood of 130-140 days has become the new normal.  This may satisfy the justices, given the even longer periods of time taken to file decisions in several terms over the past decade, as displayed in the following graph.  Yet, the graph also indicates that decisions were being filed in less than 100 (and often less than 90) days during the first 13 years of the period—at a time when the justices were filing many more decisions per term than they have of late
.[1]

Length of Decisions
In light of this information—the abundance of separate opinions per decision, the comparatively long period between oral argument and decision filing, and the low number of decisions per term—one could guess that decisions in 2016-17 averaged many more pages than they did 15 years ago.  As demonstrated in the following graph, this has been the case for several years now, with the average cresting at 62 pages in 2015-16.  The justices trimmed their decisions slightly in 2016-17, but their average of 55 pages still exceeded all of the other years covered, and more than doubled the average of 23 pages in 1995-96 and 1996-97
.[2]

Conclusion
In all three areas under consideration, 2016-17 could not match the drama supplied by 2015-16, which generated substantial increases—and, in two instances, historic highs—in the graphs and table above.[3]  The significance of 2016-17 lies in halting these large increases on the one hand, while maintaining the three measures at close to the levels of 2015-16 on the other.  It will be interesting to discover whether 2016-17 proves to have begun a stretch of “statistical stability,” or whether the graphs head sharply up or down, once we add another year to them next summer.

 

[1] Click here for a graph showing the number of decisions filed per term.  For a table showing the number of days taken by individual justices to file majority/lead opinions over the past four terms, click here.

[2] Click here for a table showing the average page length of majority/lead opinions written by each justice during the period from 2011-12 through 2016-17.  Click here for a table showing the average length of all majority/lead opinions and separate opinions over the same six-year period.  The averages in these two tables do not include title pages.

[3] “Historic” refers to the past few decades covered by SCOWstats.

About Alan Ball

Alan Ball is a Professor of History at Marquette University in Milwaukee, WI.

alan.ball@marquette.edu

SCOWstats offers numerical descriptions of the voting by Wisconsin Supreme Court justices on diverse issues over the past 35 years.

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