First, let’s turn to the most fundamental question – just how common are dissents? The data reported in Table 345 is not total cases in which at least one dissent was filed, which we have sometimes reported as the non-unanimous rate. It’s total separately signed dissents. When a Justice filed a written dissent from a denial of rehearing, we count that here too.
One thing is immediately obvious from reviewing the chart. At least in criminal matters, the Court was quite divided in the years immediately leading up to the 2004 election. The Justices filed seventy-seven dissents in criminal cases in 2000. The figure dived, but still stayed high in the years immediately following: 34 in 2001, 44 in 2002, 26 in 2003 and 18 in 2004. Civil dissents during those years were a bit higher than they’ve been in the years since, but only slightly – 21 in 2000, 16 in 2001, 21 in 2002, 15 in 2003 and 13 in 2004.
The stark division between the number of criminal and civil dissents has disappeared in the years since the election of incoming Chief Justice Lloyd Karmeier. The Justices filed eleven dissents each in civil and criminal cases in 2005. In 2006, they filed twenty dissents in civil cases, 16 in criminal cases. In 2007, there were only eight civil dissents to 10 on the criminal side. In 2008, there were fourteen civil dissents, but there were ten each in 2009, 2010 and 2011. There were eight dissents in criminal cases in 2008, 11 in 2009, 13 in 2010 and 15 in 2011. Dissents reached their highest level in recent years on the civil side in 2012 at 20, with 12 being filed on the criminal side. For the next two years, the sides of the docket were almost evenly matched – 15 civil in 2013, 7 in 2014 to 14 criminal in 2013, 7 in 2014. Last year, there were nine dissents filed on the civil side to six on the criminal side.
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We’ve noticed in our earlier work that majority opinions (but not concurrences) seemed to be getting a bit longer late in the period 2000-2007. We see an interesting result in Table 346 below – dissents weren’t especially long in the period 2000-2003, when dissents were commonplace. They started to get a bit longer beginning in 2004, when they became rarer.
In 2000, the average civil dissent was four pages, to 3.1 on the criminal side. In 2001, civil dissents were up to 5.38 pages, although they fell to an average 4.52 in 2002. During that same period, criminal dissents first retreated a bit in 2001 to 2.91 pages before increasing to 3.77 in 2002. In 2003, the average civil dissent was 5.2 pages, the average criminal dissent 3.57.
In 2004, the average dissent on the civil side was up to 6.94 pages. Criminal dissents were even longer, averaging 7.21 pages. In 2005, civil dissents reached their highest level of the entire sixteen years, averaging 9.45 pages; but criminal dissents dropped, to 3.91 pages. But the next year, both sides were high – civil dissents averaged 8.95 pages, criminal dissents 7.28 pages. In 2007, dissents in civil cases were down to 5.5 pages, and criminal dissents were down slightly, remaining historically high at an average length of 6.9 pages.
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Join us back here tomorrow and we’ll review the data for the civil and criminal dissents between 2008 and 2015.