Since Justice Kavanaugh joined the Supreme Court in the 2018 term, an average of 60-70 oral arguments have been heard per term. This figure is remarkably lower than the 100+ arguments per term seen in the early 1900s, a period that coincided with the Supreme Court’s transition from overwhelmingly unanimous decisions to higher levels of dissent. Justices such as Holmes and Brandeis, who were prominent in the early 20th century, were known for dissenting more often than their predecessors, cultivating an atmosphere where increased dissents were generally tolerated.
Interestingly, the current term is seeing dissent numbers more aligned with this period of higher agreement rates among the justices. Whether this trend will continue throughout the term remains uncertain, but the existing consensus among the justices is noteworthy. It raises questions about how this term compares to past ones and what the first part of this term indicates about the remainder of it.
So far, the Court has ruled on 18 cases based on oral arguments (including two unsigned decisions), with three of these cases or 16.67% involving dissents. Such a low dissent rate has not been observed since 1933. To find a term with four cases involving dissents, one would have to look back to 2013 and 1991, or even further to 1942.
In an attempt to analyze the number of dissents based on a specific calendar date, it is evident that we can expect no more decisions this term before Friday, April 26th at the earliest. Considering this as a benchmark, we find that the Court’s decision to move the start of the term to October in 1873 is of considerable significance. The term actually began on the second Monday of October then, later shifting to the first Monday in 1917.
Expectations for the rest of the term generally do not forecast such low dissent numbers continuing until June. The average percentage of cases with dissents since 1850 has been 38%, with a low of 16.67% this term, and a high of 81% in 1952. Last term, 51% of cases contained at least one dissent while this percentage was up to 73% for the 2021 term.
A number of theories have been suggested to explain the increased consensus, many attributing it to Chief Justice Roberts. His preference for consensus, fondness for concurrences over dissents, and consistent emphasis on agreement among the justices, potentially play a significant role. This philosophy has also been adopted by other justices, with Justice Barrett’s concurrence in Trump v Anderson exemplifying this sentiment.
Even amidst ideological divides into conservative and liberal camps, two or three swing vote justices can determine the outcome of any divided decision. A few conservative justices have demonstrated a willingness to align with liberal justices even in contentious cases. However, the Court has not yet decided on its most divisive and politically charged cases. The resolution of those will provide a clearer picture of the extent and impact of this agreement among the justices.