Yesterday, we reviewed the Court’s year-by-year experience with the length of its opinions (majorities, special concurrences and dissents) in criminal cases for the years 1990 through 2003. Today, we’re looking at the years 2004 through 2017.
The average majority opinion declined in length after about 1996, and its downward drift continued during this period. In 2004, the average majority opinion was 15.35 pages. That rose to 19.96 pages by 2007, but has declined ever since. Majority opinions averaged only 13.4 pages in 2011, only 10.37 by 2013 and reached a low of 9.18 pages in 2015 before bouncing back in 2017 to 17.15 pages.
Special concurrences were reasonably consistent throughout the period. They averaged 4.4 pages in 2004, 2.2 pages in 2005 and 7 pages in 2006, but then were between three and five pages every year from 2007 to 2017 with only one exception – 2014, when the average special concurrence was only two pages.
Dissents were a bit more unpredictable. The average criminal dissent in 2004 was 8.2 pages. After a one-year drop, it was 8.71 pages in 2006 and 9 pages in 2008. After that, the average was close to seven for the years 2009 to 2011 before dropping to 4.5 in 2012 and 3.1 pages in 2013. Since that time, the average criminal dissent has remained between four and six pages each year.
As we can see in Table 962, the decline in total pages of opinions per case in the criminal docket which we traced through the years 1990 to 2003 continued for much of this more recent period. In 2004, the average criminal case brought 27.95 pages of opinion. Leaving aside one outlier year – the average rose to 34.71 pages in 2006 – the number stayed in the twenties until 2012, when the average criminal case was decided with only 19.72 pages of opinions. The average dropped a bit more in the three years after – 18.04 in 2013, 18.76 in 2014 and 18.01 in 2015, before increasing slightly to 19.95 pages in 2016. In 2017, the average increased to 26.38 pages per case.
Was there any relationship between the length of majority opinions, special concurrences and dissents across the entire twenty-eight year period? To put it another way – did a lengthy concurrence or dissent tend to be associated with longer majority opinions in criminal cases?
The answer is clear: no. The correlation between the length of majority opinions and dissents between 1990 and 2017 was only 0.0372 – virtually no relationship at all. The correlation between majorities and special concurrences was even lower – 0.0333.
Before we leave the subject of the length of the Court’s opinions, one final question. Was there a relationship between the length of the Court’s majority opinions in civil and criminal cases? For a variety of reasons, one would expect the answer to be no – civil and criminal are very different areas of law, each case has its own level of complexity, issues, facts, etc. There should be very little relationship at all.
But in fact, there is a moderately strong relationship – the correlation between civil and criminal majorities was 0.632724. There is not, however, a consistent relationship across all opinions. The correlation between civil and criminal special concurrences is only -0.05499 – both miniscule and not even the expected sign (thus, to the extent there’s any relationship at all, special concurrences in civil cases getting longer weakly suggests that criminal concurrences might be getting shorter). There is a positive correlation between civil and criminal dissents of 0.4316, but that’s still not as strong a relationship as we found with majority opinion. So the single best predictor in any given year of whether majority opinions in civil or criminal cases are likely to get longer or shorter is to check what’s going on over on the other side of the docket.
Join us back here next Tuesday as we turn our attention to a new area.