Consensus And Unanimity Mark Supreme Court Term

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Kevin Daley Supreme Court correspondent
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A short-handed Supreme Court adopted a circumspect posture for much of its recent term, producing consensus-driven opinions that drew little dissent.

The New York Times’ Adam Liptak notes a majority of the Court’s opinions were unanimous during the 2016 term, which effectively concluded this week, and the share of cases decided by a single vote dropped precipitously.

“Having eight justices was unusual and awkward,” Justice Samuel Alito conceded at a conference in April. “That probably required having a lot more discussion of some things and more compromise and maybe narrower opinions than we would have issued otherwise.”

The Court heard arguments in 64 cases this term and produced 62 opinions — two immigration enforcement cases were scheduled for re-argument next term, which almost assuredly indicates that the justices deadlocked 4-4 on the decision.

Thirty-two of the 62 opinions, or just over 50 percent, were decided unanimously, while 30 were not. As Adam Feldman notes at Empirical SCOTUS, this is a slightly smaller margin than the justices’ 2013 performance, in which the Court produced 42 unanimous opinions compared to 35 non-unanimous opinions.

Liptak also observes that this term also saw a precipitous drop in decisions that closely divided the justices. Just 14 percent of the term’s cases were decided on 5-3 or 5-4 votes.

Much of this is probably attributable to the low number of cases the Court heard this year, as they were operating without a full complement — and at just 62 cases the justices have produced their smallest output in decades, if not longer. Still, the Court’s performance this term finds little precedent in modern history.

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