Last week, we completed our examination of trends in the length of the Illinois Supreme Court’s majority opinions. This week, we turn our attention to the Court’s special concurrences.
First, a preliminary question. Concurring opinions are a somewhat controversial subject in appellate law; some people have suggested that they tend to detract from the impact of the majority opinion and diminish the Court’s voice. So how common are special concurrences on the Illinois Supreme Court?
We report the data in Table 342 below. The biggest surprise here is that special concurrences are nearly always more common in criminal cases than in civil cases. In the years immediately before the Court’s political balance shifted in 2004, many special concurrences were filed on the criminal side – 28 in 2000, 16 in 2001, 17 in 2002 and 15 in 2003. Many fewer special concurrences were filed during those years on the civil side – 6 in 2000, 8 in 2001, 7 in 2002 and 4 in 2003. In the seven years that followed (2004-2010), special concurrences reached double digits only once – in 2005, 11 special concurrences were filed in civil cases to 6 on the criminal side. Special concurrences spiked on the criminal side in 2011 with 16; seven were filed that year on the civil side. Since that time, concurrences have fallen off again. Five were filed on the civil side in 2012 to four on the criminal side. In 2013, there were four civil concurrences to seven in criminal cases. In 2014, only one was filed on the civil side, to four on the criminal side. Last year, four special concurrences were filed on the criminal side.
We report the average length of the Court’s special concurrences in civil cases in Table 343 below. The data gives some support to the theory that special concurrences are frequently used to address points raised in dissents; in ten of the sixteen years, the average special concurrence was longer in non-unanimous decisions than in unanimous ones. From 2000 to 2002, special concurrences in non-unanimous cases averaged 6, 8 and 9.7 pages, respectively. Special concurrences were much shorter in unanimous decisions – 1.4 pages in 2000, 2.17 pages in 2001 and 2 pages in 2002. Even though special concurrences increased in number in 2005, they weren’t much longer; in non-unanimous cases that year, concurrences averaged 4 pages, to 2.67 in unanimous decisions.
We discovered in the past two weeks that the length of majority opinions tends to move in a fairly consistent way from one year to the next. Special concurrences are different; there is no real trend in length, either during the early years of our period when majorities were getting longer, or more recently when they seem to be getting a bit shorter. In 2008, concurrences averaged three pages in non-unanimous decisions to 6.5 pages in unanimous cases. Three years later, the numbers were almost the same – two pages in non-unanimous decisions, six in unanimous cases. In 2012, concurrences were even shorter – 2.67 pages in non-unanimous decisions, one in unanimous cases. Concurrences were somewhat longer in 2013 (8 pages non-unanimous, 3.67 unanimous), but there was only one concurrence in a civil case in 2014, and none last year.
Join us back here tomorrow as we review the special concurrences in criminal cases from 2000 to 2015.