Last week, we discussed the evolution of the Court’s rate of unanimity in civil cases.  But of course, that analysis omits important variables – how was the dissent distributed?  It tells us something very different if, for example, the entire group of divided decisions were 6-1 or 4-3.  So this week, we’re looking at that question – year by year, 1990-2017, how much of the Court’s civil and criminal docket was decided with one dissenter, two dissenters, and three dissenters.  For the entire period, 13.57% of the Court’s 1,363 civil cases were decided with one dissenter, 12.4% had two, and 6.6% had three.

We begin with the years 1990-1996.  For these years, cases with one dissenter tended to be somewhat under the average for the period, while two and three dissenter cases were somewhat more common than the overall average, suggesting a somewhat divided court.  One dissenter cases were 8.99% of civil cases in 1990, 11.32% in 1991, 13.04% in 1992, 23.68% in 1993, 18.67% in 1994, 12.5% in 1995 and 9.09% in 1996.  Two dissenter cases were 8.99% of the civil docket in 1990, 13.21% in 1991, 14.13% in 1992, 10.53% in 1993, 21.33% in 1994, 17.86% in 1995 and fully 20% in 1996.  Three dissenter cases were 3.37% in 1990.  There were none at all in 1991, but 4.35% of the civil docket was decided 4-3 in 1992, 2.63% in 1993, 5.33% in 1994, 7.14% in 1995 and 9.09% in 1996.

For the years 1997 to 2000, division in the Court continued, as one, two and three dissenter cases were always above the twenty-eight year average.  One-dissenter cases were 22.22% of the civil docket in 1997, 25.35% in 1998, 24.39% in 1999 and 15.79% in 2000, before falling to 7.84% in 2001, 12% in 2002 and 10.87% in 2003.  Two-dissenter cases were 15.87% of the civil docket in 1997, 14.08% in 1998, 9.76% in 1999, 18.42% in 2000, 9.8% in 2001, 16% in 2002 and 15.22% in 2003.  Finally, three-dissenter cases were 12.7% in 1997, 12.68% in 1998, 17.07% in 1999, 7.89% in 2000, 7.84% in 2001, 6% in 2002 and 4.35% in 2003.

Serious division was below the long-term trend level between 2004 and 2010 – excepting only one-dissenter cases in 2005 and 2006 and three-dissenter cases in 2004 and 2008.  One dissenter cases were 7.41% of the civil docket in 2004, 14.58% in 2005, 16.33% in 2006, but only 9.76% in 2007, 9.52% in 2008, 7.32% in 2009 and 9.09% in 2010.  Two dissenter cases were 7.41% of the civil docket in 2004, 4.17% in 2005, 10.2% in 2006, 7.32% in 2007, 9.52% in 2008, 9.76% in 2009 and 12.12% in 2010.  Three dissenter cases were 11.11% of the civil docket in 2004, 6.12% in 2006, 2.44% in 2007, 9.52% in 2008 and 6.06% in 2010.  There were no civil 4-3 decisions in 2005 or 2009.

For the most recent seven years, one and two dissenter cases have been, for the most part, below the trend level, but 4-3 decisions are a bit more common.

One dissenter cases were 10.53% of the civil docket in 2011, 15% in 2012, 20.59% in 2013, 7.41% in 2014, 9.09% in 2015, 14.29% in 2016 and 3.85% in 2017.  Two dissenter cases were 7.89% in 2011, 17.5% in 2012, 17.65% in 2013, 7.41% in 2014, 6.82% in 2015, 3.57% in 2016 and 3.85% in 2017.  Three dissenter cases were 5.26% in 2011, 12.5% in 2012, 2.94% in 2013, 7.41% in 2014, 4.55% in 2015, 7.14% in 2016 and 11.54% of the criminal docket last year.

Join us back here later today as we address the distribution of dissent in the criminal docket.

Image courtesy of Flickr by James Jordan (no changes).