Overview of the October 2020 Term: A Year of Transition
The Supreme Court began hearing cases for the term on October 5, 2020. The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. This term, the court heard all oral arguments in cases accepted for the term as well as several cases held over from the last term, remotely via teleconference and provided live audio streams of the argument sessions. The court made the decision in accordance with public health guidance in response to COVID-19.
The court agreed to hear 62 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. The court issued 67 opinions during its 2020-2021 term. Two cases were decided in one consolidated opinion. Ten cases were decided without argument. Five cases were removed from the argument calendar.
The Composition of the Court: The Dog that (Almost) Didn’t Bark
The principal transition on the Court was the appointment and confirmation of Justice Amy Coney Barrett to succeed the late Ruth Bader Ginsburg; joining the Court in November. Barrett, a former clerk and protégé of the late Antonin Scalia was seen as a vote to assure that a conservative viewpoint would prevail on significant decisions of the Court going forward.
The general assessment of Justice Barrett’s first term is that while it solidified the conservative majority that already existed on the Court, it did not result in a seismic shattering of precedent. Speculation on why this particular dog did not bark ranges from the obvious – Barrett was not involved in the selection of a majority of the cases that Court heard during the term and none of the “hot button” issues of existing precedent that a conservative majority is expected to “correct” were before the Court – to the more speculative suggestion that Chief Justice Roberts, Justice Thomas, Justice Gorsuch and/or Justice Kavanaugh were not as reliably conservative as believed; no such speculation as to the political bona fides of Justice Alito.
By the Numbers
Depending on how you choose to count things, this term the Court rendered decisions in between 56 – the number of opinions issued – or 68 – the number of decisions that were from the Court’s merit docket.[1] Of course, far more cases were “decided” by the denial of petitions for writ or certiorari, but these rarely provide any insight into the Court’s view unless there is a written dissent.
Of the 68 cases decided (the number I have chosen as I have data for those cases), only three originated from state court decisions, while only two involved matters of original jurisdiction. The remainder of the cases came from the lower federal courts as follows: 9th Circuit – 16, 5th Circuit – 7, 3rd Circuit – 6, 6th Circuit – 5, 11th Circuit – 5, D.C. Circuit –4, Federal Circuit – 3, 8th Circuit – 4, 2nd Circuit – 3, 4th Circuit – 3, 10th Circuit – 3, Armed Forces Court of Appeals –1, 1st Circuit – 1, and 7th Circuit – 1. One case was from a federal District Court.
Of course, the two numbers that always interest everyone are how many cases were unanimously decided and how many were “one-vote” case. The court was unanimous in its decision (though not necessarily adhering to a single opinion) in 30 cases (44%) and split 5-4 in just 8 (11.7%).[2] We will discuss “ideological splits” later in reviewing the decisions.
The results of the cases decided broke down this way: affirmed and final judgment – 11, reversed and final judgment – 6, reversed and remanded – 24, vacated and remanded –20,[3] injunctive relief granted – 2, dismissed – 2, denied – 1, and a decision in consolidated cases that was affirmed in part, reversed in part, vacated in part, and remanded and defies easy placement.
The chart below shows the division of labor for authoring majority decisions. The selection of the author of an opinion rests with the ranking member of the majority. As its commonly the case, the more senior members of the Court therefore write more opinions, while the more junior members are given fewer. Justice Barrett, the “baby justice,” authored only two majorities, and was not assigned to write a unanimous opinion as her first majority as is sometimes thought to be customary but did author the unanimous order dismissing an original jurisdiction matter.OctoberNovemberDecemberJanuaryFebruaryMarchAprilTotalArguments108105661358Roberts11101127Thomas11110127Breyer21010116Alito20111016Sotomayor11101026Kagan11101026Gorsuch11011116Kavanaugh11110116Barrett01101104Per Cur.00200002Opinions10895661256
Finally, we look at the “agreement table” which shows how often the individual members of the Court were “on the same side” of a decision. As presented here by seniority, it may be a bit difficult to see the factional make-up of the Court.ThomasBreyerAlitoSotomayorKaganGorsuchKavanaughBarrettRoberts75%73%83%66%72%81%94%84%Thomas–63%82%55%57%88%78%85%Breyer––59%93%93%66%73%64%Alito–––53%58%88%86%87%Sotomayor––––88%53%66%58%Kagan–––––70%72%69%Gorsuch––––––87%91%Kavanaugh–––––––91%
If, however, we arrange the rows and columns and starting with the highest level of agreement, a pattern clearly emerges:KaganSotomayorRobertsKavanaughGorsuchBarrettThomasAlitoBreyer93%93%73%73%66%64%63%59%Kagan–88%72%72%70%69%57%58%Sotomayor––66%66%53%58%55%53%Roberts–––94%81%84%75%83%Kavanaugh––––87%91%78%86%Gorsuch–––––91%88%86%Barrett––––––85%87%Thomas–––––––82%
The pattern, of course, is the jurisprudential/political division of the Court. Breyer, Kagan and Sotomayor clearly form a faction, being in agreement over 90% on average. This is no surprise as they are widely accepted as the “liberal” rump of the now conservative leaning Court.
The more interesting development is the grouping of Kavanaugh, Gorsuch and Barrett, who are found in company 89% of the time and not always in the company of Alito and Thomas, perhaps representing a division between the “Old Guard” and the “Young Turks” within the conservative wing. This grouping is even more intriguing when you consider that Chief Justice Roberts and Justice Kavanaugh are in the same camp 94% of the time, suggesting that with the Chief Justice, the “Young Turks” might form a right-center block.
While no one could reasonably suggest that Justice Alito is now a “centrist,” examining his voting record suggests that he is failing to find common ground with Thomas over ideological issues of constitutional interpretation. Thus, while Justice Alito is still to be regarded as the most conservative member of the Court, Justice Thomas often finds himself alone in dissent, or at least on the outs with the other conservatives, because his judicial philosophy is no longer au courant.
One view is that the conservative viewpoint on the Court is being contested by the Chief Justice and Justice Alito, with the Chief Justice having the upper hand for now. Justice Thomas, unwilling, or perhaps unable, to make it a three-way contest, finds himself sidelined.
If we use Justices Breyer and Alito as our opposite polestars, the political alignment of the Court falls into the generally accept pattern with Sotomayor, Kagan and Breyer being the liberal wing (in descending order), Roberts and Kavanaugh being closer to the center, though still well to the conservative side, followed by Gorsuch, Barrett, Thomas and Alito, the latter two arguably representing different branches off the main line.
Finally, in the review of the cases you will see a phrase repeated several times in cases described as “unanimous” indicating that Justice Sotomayor authored a separate concurring opinion. Prior to the death of Justice Antonin Scalia, both he and Justice Ginsburg – close personal friends off the bench – would often write separate decisions in unanimous cases. This was undoubtedly an academic exercise for both, a form of private conversation between to legal titans. Justice Sotomayor’s penchant for writing separately in unanimous cases may stem form a desire to keep this debate of left and right alive – but she has found no counterpart on the conservative side.
[1] Even here there is some lack of certainty as some sources put the latter number at 69 – the confusion rests over what constitutes a decision on the merits. Moreover, these numbers reflect “decisions” not “cases,” as several of the decisions were rendered in consolidated cases.
[2] Unanimous cases include 8-0 opinions where a Justice did not sit and one case where the vote was not announced; 5-3 decisions were not included as “one-vote” decisions as the vote of the Justice not sitting would be speculative.
[3] Including two cases that were “GVR’ed” – that is “granted, vacated and remanded.”