Yesterday, we considered the prevalence of dissent in Appellate Court opinions. Now we turn to the data.
As it turns out, this is one bit of conventional wisdom that appears to be true. In most years, less than one in five published opinions in the Appellate Court draw a dissent (and in many years, far less than that), but cases with one dissenter at the Appellate Court typically make up anywhere from twenty-five to forty percent of the Supreme Court’s civil docket:
So a dissent helps – but note the obvious corollary of this data. In any given year, anywhere from sixty to seventy-five percent of the Court’s civil docket consists of cases decided unanimously by the Appellate Court.
Not surprisingly, in most years a dissenting opinion before the Appellate Court is a reasonably good predictor of whether or not one or more members of the Supreme Court will dissent from the Court’s eventual decision. The data below are cases with at least one Appellate Court dissent as a fraction of the Supreme Court’s unanimous and non-unanimous civil decisions:
Next time, we’ll turn to a related question – how often does the Supreme Court agree to review unpublished Rule 23 orders?