The Least Productive Supreme Court Ever?

The justices hear fewer cases and decide fewer questions than they used to.

The Supreme Court is on track to decide the fewest number of cases after oral argument in over 150 years. Despite the reduced workload, the justices are behind this term, having issued opinions in just over half of the 62 argued cases. We will get more opinions tomorrow (Wednesday) morning, but the justices will have to pick up the pace if they are to finish before the July 4 holiday, as is traditional.

There may be extenuating circumstances behind the Court's slow pace this term -- the pandemic, shadow docket filings, and (of course) the Dobbs leak, to name a few. But the Court's declining speed and productivity seems to be something of a trend. Idneed, as data Adam Feldman put together suggests, this may be the least productive Supreme Court ever. As Feldman notes, last year the Court "decided the fewest number of cases on oral argument since the Civil War," and they will decide even fewer this year.

From Feldman's post on EmpiricalSCOTUS:

Since the number of oral arguments has dropped since 2017, presumably the Roberts Court's average is even lower than that shown in the graph. The Court's lack of productivity is also evident in the following graph (based on cases orally argued derived from the Supreme Court Database) showing how it hit a modern day low last term when the Court decided the fewest number of cases on oral argument since the Civil War.

Based on the historical evolution of the Court's institutional power and legitimacy, the Court's diminished modern day merits docket implies that not only is the Court less productive now than it was before, but that it currently may be the least productive Court ever.  There was no expectation that the Court would decide a baseline number of cases each term in the mid-1800's. Once the Court began hearing 150 to 200 cases a term in the mid-20th century though, the expectation became that the Court would continue to do so. Obviously, the Court has not followed this course.

More from Feldman:

With 53% of cases undecided by the beginning of June 2022, the Court has had its least productive term through the second to last month of a term since the Court's calendar moved to October through June.

Other indicators similarly reflect the Roberts Court's lack of productivity.  Based on the preceding graphs it should not be surprising that the Court's current majority opinion output is the lowest it has been since the Civil War. The following graph shows the average annual number of majority opinions in orally argued cases released by Court Era. . . .

The Court has drastically changed its shape over time. The justices are deciding some of the most politically charged and publicly important cases ever this term, dealing with issues such as abortion, gun control, and border policies. On the other hand, the Court only heard 63 arguments this term which is below the average number of arguments even during the Roberts Court years. The graphs above convey that this Court's current productivity is the lowest that it has been since the 1800s and since the Court was only in a nascent stage at that point, the Roberts Court is arguably the least productive Court in history.   This trajectory is unlikely to change anytime soon.

The Court is deciding fewer cases, hearing oral argument in even fewer, and taking longer to decide them (such that we began this June with over half of this term's cases still undecided). This serves no one's interests.

It is possible that some justices think the Court should decide fewer questions so as to intrude less into the political sphere. I understand the impulse, but it is counter-productive. The Court continues to decide cases concerning political subjects, and (as the docket shrinks) those cases become a larger share of the Court's work. Thus, the Court with a smaller docket comes off as a more interventionist institution than it would were it taking the time to resolve more circuit splits and provide greater clarity in unsettled areas of law.  Whether or not this is the reason the Court is hearing fewer cases, the justices should seek to undo this trend.

Comments

[DaivdBehar]

Is the nation better off with more decisions, fewer decisions, or they do not make any difference? Not an obvious answer. They are wrong so often, we may want to encourage them to take longer vacations, and to rest a lot more. We know their decisions will be unlawful judicial review by Ivy indoctrinated, know nothing bookworm lawyers. We know they will be totally biased in favor of big government and too oblivious to disclose their conflict of interest even to themselves. They are paid by the federal government instead of by both sides, as would be proper. They may have started with high IQ's. After 1L, they lost all common sense, and entered a realm of supernatural doctrines plagiarized from the Medieval catechism. They are toxic clowns, yet totally self confident and unbearably arrogant. They think they are smart enough to set national policy on highly technical matters.

[Frank Drackman]

It's obvious, most of the hard work is done by the Clerks, who as smart as they might be, are Millennials, so they're on their phones all the time, probably didn't serve in the Military, play a real sport (i.e. not Soccer, Lacrosse, Hacky sack), in other words, they're lazy as (redacted)
Which is a good thang, I'd be happy if they decided NO cases,

Frank "Less is More"

[DaivdBehar]

These dipshits have not been good to medicine. Drug reps may know your every script. They may come around to ask why you are not prescribing more of their product, thanks to this Court. Does it advance or retard medicine to prohibit the patenting of a natural product of the body or a of surgical procedure? I don't know, but these know nothing dipshits decided the question for you. They did not bother asking for advice from any doctors or patients before doing so.

[Krayt]

Hopefully that will translate to similar behavior when they start moving into Congress in a few years. Our current inflation and other problems are iatrogenic.

[Stephen Lathrop]

Does anyone think the court might decide to re-hear the Alito/Dobbs fiasco before making a decision?

[EscherEnigma]

I mean, I hadn't before now.

And now that I've considered the idea, I still don't find it likely. Only one justice would change between when it was first heard and a second hearing, the only change in the facts is that the justices have a better idea of just what the GOP is going to do if they overturn Roe...

So unless you think one or two of the conservative justices were shocked at how brazen some red states got when they thought Roe was going to be overturned and has new questions to ask, I don't see what basis they could claim. And since the draft is already out there, falling back to a can-kick would be rather obviously craven.

So nah. It's just going to be released on the last day so that they can all go home for summer vacation rather then deal with driving past protestors on their way home from work.

[Stephen Lathrop]

I wonder specifically whether Roberts could persuade Gorsuch that Alito's draft opinion is too radical. If so, I could imagine a call for re-argument could provide an opportunity for Roberts to join the majority, and write the opinion himself.

[Noscitur a sociis]

The justices can change their votes any time before the opinion is announced (and they do, I'm on occasion, with majority opinions turning into dissents and vice versa), so I'm not sure what purpose hearing additional arguments would serve.

[Stephen Lathrop]

It would put some perceived legitimizing distance between the Alito draft and whatever would come next. New arguments, clean slate. Alito draft leak becomes irrelevant. Any other way they do it, motivated bystanders will denounce the result as wrongly influenced by the leak.

[MatthewSlyfield]

"Any other way they do it, motivated bystanders will denounce the result as wrongly influenced by the leak."

Any why wouldn't those same motivated bystanders see the decision to re-argue the case as itself wrongly influenced by the leak?

[Stephen Lathrop]

Because they would be chastened from making fools of themselves by the legitimizing advantages of a customary leak-free procedure? Or do you see them pioneering a new custom, to get the Court's deliberations into alignment with factional preferences, and then freeze deliberations, using political pressure mobilized by tactical leaks?

[MatthewSlyfield]

"Because they would be chastened from making fools of themselves by the legitimizing advantages of a customary leak-free procedure?"

That just moves the question, why those upset by the leak changing the outcome away from the draft opinion see "a customary leak-free procedure" as legitimizing a change in the outcome post leak?

On another point I would argue even if a new leak could prevented, re-argument post leak, particularly if the re-argument is entirely motivated by the leak, does not get you to "a customary leak-free procedure". You have one shot at "a customary leak-free procedure" and that's already been blown.

[Noscitur a sociis]

I have trouble imagining someone who would be upset at an opinion upholding Roe this term but who would be assuaged if it came after a transparently pretextual order for reargument.

[AmosArch]

"States can't be forced to allow baby killing"

RAAADIIIIICALLLL d00d! I'm doing cartwheels on my shark surfboard shooting lasers out of its eyes thinking how extreme this concept is!

[ReaderY]

Current discussions might have the opposite effect.

Roberts’ approach would declare the Mississippi law consistent with a narrow interpretation of a right to abortion and postpone deciding whether such a right exists until later.

I don’t think anybody is going to accept such a result as final. The reason I think that Roberts has a serious argument is the rule against deciding more than is necessary for the case would seem to cavor it.

But if thefe’s anything that responses to the Dobbs opinion make clear, it’s that any gradual change is pure wishful thinking. There will be laws full-on challenging Roe as soon as a case can reach the Court. Any postponement will be very brief.

So one could argue that any postponement would be essentially futile. The issue will only be decided again in a term or two. Changing things all at once might be better for the court from a political and public relations point of view than going in two steps one shortly after the other.

So why not decide it now?

[not guilty]

Reargument of Dobbs would add nothing to the dispute. Chief Justice Roberts at oral argument attempted to engage counsel on the merits of Mississippi's fifteen week cutoff, but no attorney took the bait.

Overruling Roe v. Wade and Planned Parenthood v. Casey was not a question presented in Mississippi's petition for certiorari. https://www.supremecourt.gov/DocketPDF/19/19-1392/145658/20200615170733513_FINAL%20Petition.pdf The petition expressly stated at page 5, "To be clear, the questions presented in this petition do nor require the Court to overturn Roe or Casey." The granting of the writ of certiorari was limited to the question, "Whether all pre-viability prohibitions on elective abortions are unconstitutional."

If Roberts could persuade one member of Alito's putative majority to uphold the fifteen week cutoff but without reaching the continuing validity of Roe and Casey, that would become the precedential opinion under the rule of Marks v. United States, 430 U.S. 188, 193 (1977) (When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.)

That would not require reargument.

[Stephen Lathrop]

The problem I wonder about is other stuff which Alito's reasoning creates room to support. Roberts probably does not want an immediate lurch toward attacks on contraception, for instance. But Alito's current reasoning seems to me to point in that direction, despite the specific denials that any such thing would happen. I am far from alone in that view.

See my reply to Noscitur above for more on why re-hearing might work better than just switching votes now—and indeed, on why a rehearing might enable someone—I assume Gorsuch is the likeliest candidate—to back a differently-drafted opinion, one with less room to support reasoning for more attacks on privacy to come.

Everyone seems to understand the effect of the leak as pressure delivered to freeze votes in place. That will have influence, especially politically, on how the decision is regarded going forward. Re-hearing, with a request to brief whatever questions the Alito decision encompassed based on little more than his own say-so—for instance the egregious history and tradition argument— would mitigate the leak as an enduring influence in the history of the case, and its public consequences.

[ReaderY]

Two issues here.

1. I’m no insider. But it seems to me that language-softening is the sort of thing that happens when justices comment on each others’ drafts, not the sort of thing that tequires re-arguing a case.

2. What distinguishes the language from Bowers v. Hardwick? It pretty much is the Bowers v. Hardwick language. That’s not exactly radical. The court has been 5-4 (or 4-5) on it for decades.

3. Both Griswold and Lawrence have potential alternative bases.

a. An alternative basis for Griswold was the institutional rights of a marriage as an instrument in preserving alternative ideas, analogous to the institutional rights of univiersities, the institutional press, and others. The idea has pretty much fallen out of favor and been replaced by individual-rights theories (compare Griswold with Eisenstadt. The institutional press hasn’t fared very well either). But it could return.

b. A potential alternative basis for Lawrence is O’Conner’s concurrence. In O’Conner’s view, the state can prohibit sex outside of marriage if it wants, but it can’t prohibit only homosexual sex. While the Texas sodomy statute involved did not violate Due Process, it violated Equal Protection. It seems to me that in Bostock, both Gorsuch and Roberts signed on to something that looks wuite a bit like O’Conner’s theory. This suggest thst something like O’Conner’s concurrence might be able to get the votes of 5 Justices (I assume that the 3 liberals would be perfectly willing to sign on to equal protection based arguments).

[Rev. Arthur L. Kirkland]

" It is possible that some justices think the Court should decide fewer questions so as to intrude less into the political sphere. "

Which justices do you have in mind?

Thank you.

[EscherEnigma]

I mean, the solutions are obvious.

If the slow-down is due to a meaningful change in the work, then if you want to return throughput to historical levels, you add more workers. Probably would need to reorg the court a bit to act as a 'super appeals' court where most cases are settled by a subset. Would probably also reduce the reliance on the much-acclaimed "shadow docket".

Alternatively, if the slow-down is because the current justices are just slower workers, then the answer is to retire and replace them with young blood.

In either case, if you want to maintain the old status quo, change in the composition or arrangement is needed. Perhaps it would be sufficient to replace the head boss (Chief Justice), but that relies on a belief that the Chief Justice actually has that much influence.

Now, none of that is going to happen (unless Roberts has a sudden and unexpected death). So you'll probably just have to suffer.

[Bob from Ohio]

"retire and replace them with young blood"

After Breyer leaves, this will become of the youngest courts in recent history. A lot younger than the current Democratic political leadership.

[Intelligent Mr Toad]

I bet it's by design. The circuit courts and below-circuit courts are infested with the Practical-Joke-on-Affirmative-Action-Supporters' (ie Thomas') former clerks (like James Ho), and the activist-right-wing majority on the Supreme Court is planning to let them make the right-wing decisions, and dodge responsibility by simply refusing to hear the appeals rather than support the decisions.

When Tiberius Caesar died, and the ongoing damage to ordinary liberties which his policies had been causing persisted, some exasperated Romans said "he stings like a dead wasp!" After Clarence Long-Dong-Silver retires, we will be saying the same about him. Rikki-Tikki-Tavi knew: the cobra's eggs are no less dangerous than the cobra.

[Noscitur a sociis]

Practical-Joke-on-Affirmative-Action-Supporters' (ie Thomas')

Clarence Long-Dong-Silver

Jesus fucking Christ.

[santamonica811]

Nos,
Not understanding your reaction. Did you get the reference?

It's not an ugly, racist, "Black Men have Large Penises" reference. It's a "Clarence Thomas famously watched this particular porn movie" reference.

[AmosArch]

Three conservative professors would be fired for playing a historical movie with the nword in it in the time it took you to write that apologia.

[santamonica811]

I think you may be confusing apologia with "explanation." I gather that there are lots of VC readers who are younger, and grew up well after the Thomas confirmation hearings, and therefore have no idea of the actual reference. If you don't know it; the reference could easily be taken to be a racist swipe at the "black = large penis" trope.

(I, of course, had meant to write that Long Dong Silver was the famous porn *actor*...and not the porn movie. My 1 millionth complaint at the lack of an edit button here.) 🙂

[Brett Bellmore]

I think we're familiar with the reference, we just regard making it as gratuitously tasteless.

[Intelligent Mr Toad]

Confirmed. I was referring to Daniel Arthur Mead, aka "Long Dong Silver", whom Clarence Thomas told Anita Hill was his favorite porn-star.

https://www.youtube.com/watch?v=Jk71UVpHdHg

And his nomination to SCOTUS (Thomas' nomination, not Mead's) to replace Thurgood Marshall was certainly a practical joke on supporters of affirmative-action. William Krystal was the joker.

[AmosArch]

I like how the claws really come out when leftoids are 'betrayed' by groups that are supposed to belong to them but 'escape the plantation'. Conservative women are derided as scatterbrained volatile b$hs. Conservative blacks must be dumb puppet thugs. A laundry list of insults and stereotypes from from the deepest South Jim Crow satire tv show is loosened out of the sjw's mouth the second they are scorned that would make a stormfronter blush.

[Brett Bellmore]

I don't see how it could be Covid this term. 2020, 2021, maybe. But this year? I think most people have forgotten Covid exists most of the time. The pandemic is over, for practical purposes, even if a few aspiring medical dictators are clinging to it.

Maybe the Dobbs leak. But the long term trend is obvious, and it's not hard to discern a reason: The Court picks it's own workload, why would it NOT over time chose to do ever less work, until some outside force compels them to stop being slackers?

[David Nieporent]

The Court picks it's own workload, why would it NOT over time chose to do ever less work,

Well, because the work is easy and it gives them a chance to make an impact.

[apedad]

The Court is deciding fewer cases, hearing oral argument in even fewer, and taking longer to decide them (such that we began this June with over half of this term's cases still undecided). T̲h̲i̲s̲ ̲s̲e̲r̲v̲e̲s̲ ̲n̲o̲ ̲o̲n̲e̲'̲s̲ ̲i̲n̲t̲e̲r̲e̲s̲t̲s̲.̲̲

You can't make that statement without knowing the "why" behind the data.

Maybe govt officials (at all levels) are - generally - better at meeting constitutional requirements; maybe due to increase legal knowledge and resources via the internet, e.g. The Volokh Conspiracy.

My hypothesis would match the expansion of the internets since the late 1980s (just look at the huge 1989 drop).

[Brett Bellmore]

"Maybe govt officials (at all levels) are - generally - better at meeting constitutional requirements"

LOL! Thanks, it's always nice to start the morning with a good belly laugh.

[OtisAH]

Are they not upending the entire 20th century quickly enough? Look on the bright side and think more of the quality of the destruction and less of the quantity.

[Bob from Ohio]

"upending the entire 20th century quickly enough?"

Quickly? They have yet to reverse a prominent Warren Court decision.

[Dan Schiavetta]

Oral argument might be fun, but how many times does it really change the result?

[rswallen]

It's also possible that fewer novel questions are being asked, if not just fewer questions in general, or that lower courts have resolved them satisfactorily, meaning the court just has less to decide because they've decided previously and see no justification for overturning those decisions (with a couple of notable exceptions). Would be interesting to see a comparison between questions (or novel questions) asked and cases taken up.

[Brett Bellmore]

Or it could be that they're not lifting a finger to resolve circuit splits on critical constitutional issues because they're lazy SOBs.

Yeah, I lean towards that explanation.

[David Nieporent]

Yes, but once again: Dunning-Kruger.

[Stephen Lathrop]

Plenty of facts point to a well-reasoned need for Congress to restructure the Court, and make it larger. Population increases steadily, proportionately multiplying occasions for thorny legal disputes. Nothing to accommodate increased workload has happened on the Court since 1869, when the population was about 10% what it is now. Why expect that if nine justices was a reasonable number then, it would remain even close to reasonable now?

Add to that the revolution in the Court's practices for taking on cases—with the changeover to case-limiting use of certiorari in 1925—and you see a judicial docket sharply narrowed in proportion to the workload generated by an enlarging nation. That also fueled the present, politically charged practice on the Court to decide, "questions," instead of, "cases and controversies."

Congress should recognize that the nation needs a far larger court, and a return to decisions briefed and argued whole, on the basis of, "cases and controversies," not on the basis of, "questions."

What the right number of justices should be will be a question answered mainly by politics. I suggest at least several times larger than the present number, with justices working in randomly reshuffled combinations on 9-member panels, to which cases are also assigned at random.

Of course I understand that right wingers, keenly appreciative of the partisan political advantages they enjoy with the present court, would oppose politically any changes whatever, let alone the dramatic change which the court needs. So any such change will have to come after Democrats assemble sufficient political power to accomplish it. Ongoing political overreach on the present Court will surely help Democrats toward that objective.

[Brett Bellmore]

As I've said before, the Democrats packing the Court the next time they're in a position to is pretty much baked in at this point. The only way it's not happening is if Republicans seriously pursue an amendment to fix the Court's size.

As they should have four years ago, when they had the chance.

[apedad]

290 Representatives and 34 Senators to propose an amendment; or 34 states to hold a convention.

And then 38 states to ratify an amendment.

I seriously doubt either party will be able to gather those kind of numbers for any amendment for a long while.

[Brett Bellmore]

Court packing is pretty unpopular except with Democrats. Even independents are deeply against it. The states would be easy once it got out of Congress, there are probably a lot of potential amendments the states would ratify in a heartbeat, the problem being that Congress won't originate them. An anti-Packing amendment is one of them.

You'd need a threat to get the Democrats to play along.

The most obvious threat would be to introduce the amendment, and then publicly announce with great fanfare that a refusal to vote for it would be interpreted as proof Democrats intended to pack the Court. Since it's not just Republicans, but also independents, who are violently opposed to the idea, that by itself would probably suffice, since every Republican would support it, you'd only need a third of Democratic members to defect.

If it didn't, you could probably use the looming threat of packing, proven to be real by Democrats' refusal to support the amendment to push the call for a Constitutional convention over the top. That's the second line threat.

[bernard11]

The most obvious threat would be to introduce the amendment, and then publicly announce with great fanfare that a refusal to vote for it would be interpreted as proof Democrats intended to pack the Court.

Well, you can publicly announce that A proves B all you want. That doesn't make it so.

[Brett Bellmore]

In this case it pretty much does, since you can't make all the demands for Court packing go away, and it's obvious that the only reason to oppose such an amendment IS the desire to pack the Court.

[David Nieporent]

As I've said before, the Democrats packing the Court the next time they're in a position to is pretty much baked in at this point.

And as I've said before, all you ever have are conspiracy theories.

[John F. Carr]

We already have intermediate appeals courts so most litigants have a second chance. Few cases need a second appeal to the Supreme Court. If we need to reduce the workload per justice (I am unconvinced we do) then we can look to Florida's system where there is typically no review by the Supreme Court unless a division of the appeals court certifies the issue or acknowledges a conflict with another division of the appeals court.

[Frank Drackman]

Lets see how you feel when "45" becomes "47" in January 2025

[David Nieporent]

What the right number of justices should be will be a question answered mainly by politics. I suggest at least several times larger than the present number, with justices working in randomly reshuffled combinations on 9-member panels, to which cases are also assigned at random.

I suggest you take the radical step of actually learning something about a subject before you make suggestions. (Particularly ironic that I need to make such a suggestion to you, the guy who wants to act as a gatekeeper on so so many topics discussed here.) That is an incredibly stupid idea that only a non-lawyer could think to be a good one.

[Xenantaya]

Three points:

1. Arguably, the situation is even worse than the chart shows. I would assume the overall number of cases has grown dramatically over time. If one takes the overall number of cases as the denominator (or perhaps the overall number of cases involving a federal issue), and number of S Ct cases as the numerator, then that ratio has probably fallen off a cliff since the civil war.

2. On the flip side, presumably "productivity" shouldn't just be measured in number of opinions. The times I've had to rely on S Ct cases from the late 1800's, and sometimes even the early 1900's, I've found many of them to be short and not addressing all the counterarguments or concerns that might arise from the decision. I wonder how the average length of opinions (both majority opinions and all opinions in total) compares now to earlier cases, along with things like number of legal cites. These might serve as a proxy for opinion quality, though obviously just approximate at best.

3. When looking at the S Ct's large case load in post-Civil War era, one has to remember they decided a lot of pure state law cases under the federal common law. Of course, Erie v. Thompkins put an end to that practice in 1938, and one can see a sharp dip in the number of cases the S Ct took from 1939 to the mid-1950's, presumably as a result of Erie. So long as Erie is in place, I don't think we'd expect the modern court to hear as many decisions as in the post-Civil War era (and least on a percentage basis, per my comment 1).

Of course, even post-Erie in the 1960's and 1970's, they heard a lot more cases than they do now. That could lead to fourth point about during that time of the "rights revolution" the S Ct was hearing more cases because it was creating more law re the Bill of Rights and how to interpret federal statutes, but this comment is already too long.

[David Nieporent]

2. On the flip side, presumably "productivity" shouldn't just be measured in number of opinions. The times I've had to rely on S Ct cases from the late 1800's, and sometimes even the early 1900's, I've found many of them to be short and not addressing all the counterarguments or concerns that might arise from the decision. I wonder how the average length of opinions (both majority opinions and all opinions in total) compares now to earlier cases, along with things like number of legal cites. These might serve as a proxy for opinion quality, though obviously just approximate at best.

This.

It is astonishing in reading older opinions compared to the modern era how much pure ipse dixit there was. Conclusory statements with no attempt to link them to any supporting material.

[SRG]

It's very surprising, given how easy the court's jurisprudence is to deploy. Look at Egbert v Boule, decided today. Does anyone think it took Thomas et al longer than about 5 minutes to decide that as Boule is a scumbag motel owner and Egbert a decent upstanding BP agent, Boule can't sue Egbert and fuck Bivens?

[QuantumBoxCat]

I think Feldman tries to say too much from a dataset that is not very well coded. I assume he merges the Supreme Court Legacy dataset (1791 to 1945) with the Modern Supreme Court dataset (1946 to present). But the Legacy dataset has serious problems with its coding, which stems from the nature of the U.S. reports during this period (from which the data is taken) and a basic variable capturing the term of the court (as opposed to the "term year," which is coded).

From 1827 to 1844 the Court began its term in January and typically adjourned around the middle of March. But 5 Stat. 676 modified the start date of the term from the second Monday in January to the First Monday in December. So, in 1844 the Court had a January term and a December term. In the legacy dataset the January 1844 Term is coded as the "1844" term and the December 1844 Term decision are coded as the "1845" term. Coding the terms by year results in miscoded cases once the Court starts holding terms that overlap years (like it presently does).

This problem is easily observed in the graphic where one sees a spike of decisions in the 1850 term. The problem arises from the fact that decisions from the Court's December 1849 and the Court's December 1850 term are both coded as being decided in the "1850" term year. That 140 spike in decisions is the result of inaccurately coded data. This is only one of the problems that arises from the coding of the legacy data.