Supreme Court justices have limited mandatory writing duties. Most of the justices are assigned majority opinions to draft. A few justices assign the majority opinion writing duties. This assignment is made by the Chief Justice if he is in the majority and otherwise by the most senior associate justice in the majority. Obviously a justice needs to be in the majority coalition to author the majority opinion, but since historically justices are all in the majority more than 50% of the time, there are ample opportunities for all justices to author majority opinions.
Majority opinion authorship is traditionally spread equally among the justices although there are occasional disparities. The range in majority opinion authorship in the recently completed term was four (Justice Alito) to seven (Justices Roberts, Thomas, Sotomayor, and Kagan). There is also a norm that the justices author at least one opinion from each oral argument sitting but like total majority opinions assigned, this does not always work out in practice.
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The justices do not need to author separate opinions in the form of concurrences and dissents. In fact, scholars have argued that the added burden of writing separate opinions is only justified when the justices are sufficiently motivated by internal and external factors to overcome the burden on a justice’s time and energy to write these non-obligatory opinions.
Context
When we look at total justice opinion authorship since 2005 for all recent justices (with data compiled for the United States Supreme Court Database) along with the number of opinions averaged per term we see the following
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Justice Thomas dominates the total number of opinions, which makes sense since he is one of only two justices who was on the Court for this entire period along with Chief Justice Roberts, but is also the leader in terms of opinions per term averaging nearly four more than the next closest justice.
Similarly, when we look at the numbers this term assembled for the Term’s Stat Review with the help of Jake Truscott, we see:
Justice Thomas and Justice Jackson (who is number two in opinions per term so far in her two terms on the Court) are the two justices who authored the most opinions this term at 23, with Justice Gorsuch trailing by just one opinion.
Specifics from this term
Total opinion authorship does not tell the full story though. Since some opinions are longer than others, there is potential for justices to author more opinions and still put in less measurable work than their colleagues. To probe this question we can begin by looking at the longest decisions for the term inclusive of all opinions within each decision:
Within these decisions, the longest majority opinions were Roberts’s in Trump v. U.S. and Loper Bright, the two longest dissents were Justice Kavanaugh’s in Harrington v. Purdue Pharma and Justice Sotomayor’s in SEC v. Jarkesy, and the two longest concurrences were Justice Gorsuch’s in Loper Bright and in SEC v. Jarkesy.
We can learn a little more by looking at the justices who authored at least 10,000 words in opinions based on the oral argument sitting from which the cases were argued. This goes back to the idea that justices are typically assigned a similar number of majority opinions per sitting.
This tells us that the only justices to author the most words for two sittings are Justices Kagan and Kavanaugh.
But where does that put us in terms of words per justice? First a look at the justices that authored the most words by opinion type:
Chief Justice Roberts wrote the most words in majority opinions, but wrote hardly anything in separate opinions. Justices Sotomayor and Jackson wrote the most words in dissents while Justices Gorsuch and Thomas wrote the most words in concurrences. Did Justice Thomas, who authored the most opinions write the most words, a measure of total workload, both discretionary and non, for this term?
In fact, Justice Gorsuch wrote substantially more words than both Justices Thomas and Jackson who come in second and third on this list. Chief Justice Roberts who authored the most words in majority opinions falls almost to the bottom of the list due to hardly any words in separate opinions, and Justice Barrett who was touted as writing some of the most persuasive opinions this term wrote the fewest words.
Going back to the discretionary workload though, the following graph shows the sum of words in dissents and concurrences by justice:
Justice Jackson actually led this tally followed by Justice Gorsuch. Justice Gorsuch’s longest majority opinion was in Grants Pass v. Johnson.
At the end of the day we see that the justices that write the most opinions do not always have the greatest output for the term, and the justices that have the greatest impact for the term may not be the justices that write the most.
Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at [email protected]. Find him on Twitter: @AdamSFeldman.