The Supreme Court has heard somewhere in the neighborhood of 60-70 oral arguments per term since Justice Kavanaugh joined the Court in the 2018 term. This is well more than 100 fewer arguments than the Court heard at the highest point of arguments per term around the first few decades of the 1900s. That time period overlapped with the Court moving from predominately unanimously decided cases to higher levels of dissent. Justices like Holmes and Brandeis in the first part of the 20th century dissented more frequently than justices did that preceded them which created a culture where an increase in dissents was generally accepted.
So far this term we are seeing dissent counts more on par with this period of higher agreement rates between the justices. Will this sustain across the entire term? Unlikely, but then again, so is the amount of consensus between the justices so far this term (albeit this is less surprising than if this agreement sustains itself for the remainder of the term). Just how different is the start of this term compared with past terms? What does the first part of this term show whether this holds for the remainder of the term? These two questions are examined below.
The Court has decided 18 cases so far this term based on oral arguments (including two unsigned decisions). Three of these cases or 16.67% included dissents. What has this looked like in past terms? The following graph looks at the number of dissents in the first 18 cases going back to the first arguments presented before the Court in 1791.
The last time the Court had zero dissents in the first 18 decisions was in 1934. This was also the last time the Court had three or fewer dissents in the first 18 decisions (the Court had three dissents in 1933 as well). There were four cases with dissents in 2013 and in 1991. Before those terms, you need to go all the way back to 1942 to find the same.
What if we wanted to look at the number of dissents based on a certain calendar day? Since we shouldn’t see more decisions this term before Friday April 26th at the earliest, this is a good benchmark. The starting year for this comparison is 1873. 1873 is an important year because it is when the Court moved the date of the start of the term to October. The Court term actually started on the second Monday in October then and only moved to the first Monday in 1917.
The picture here is even starker. The only term close to this term based on decisions with dissents in the past was last term where the justices issued dissents in five cases by this date. Prior to that, the least was seven cases with dissents by April 26th in 1888.
What about expectations for the rest of the term? Surely these expectations aren’t for a continuation of such low dissent numbers through June. The following graph shows the percentage of cases with dissents by term since 1850 (1850 is an arbitrary year but the Court’s docket was in such flux in terms of caseload prior to around 1850 that percentages really do not tell the entire story).
The average percentage of cases with dissents across this entire period is 38%. This is obviously pulled down by decisions prior to 1942 which was the first term to hit this 38% mark. The average percentage of cases with a dissent from 1942 through the end of last term is 61% with a height of 81% in 1952. Last term, 51% of cases had at least one dissent while this percentage was up to 73% for the 2021 Term (the term prior to last).
There are several possible explanations for the increased consensus and many point back to Chief Justice Roberts. Whether it is his push for consensus and a preferences for concurrences over dissents, his rhetoric speaks to the importance of agreement among the justices. Other justices have adopted a similar philosophy. Justice Barrett wrote as much in her concurrence in Trump v. Anderson:
“The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”
Even if the justices are ideologically divided into conservative and liberal camps, two or three justices in the middle can force an outcome in any divided decision. Several justices that are conservative on the balance have shown a willingness to join liberal justices even in contentious cases. Perhaps a shared interest in finding agreement in less contentious cases led to the high level of unanimity so far this term. Aside from Trump v. Anderson though, the Court has not decided its most divisive and politically charged cases. When that dust settles, we will have a better sense of how far this agreement among the justices actually goes.
Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at adam@feldmannet.com. Find him on X/Twitter and LinkedIn. He’s also on Threads @dradamfeldman and on Bluesky Social @dradamfeldman.bksy.social.
