The Volokh Conspiracy

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How Many Opinions Did Each Justice Write During OT 2021?


During the October 2021 Term, each Justices authored between five and eight majority opinions. The Chief assigned himself the most majority opinions (8) and Justice Kavanaugh had the fewest (5).

Justice Kavanaugh wrote the most concurring opinions with 8. Indeed, Kavanaugh beat Thomas and Alito, who each had 7. Five of the Kavanaugh concurrences were solo (WoodenRamirezShurtleffDobbs, and Biden v. Texas). The other three were joined by Barrett (Zubaydah), Gorsuch (Cummings), and Roberts (Bruen). We are well familiar by now with the Kavanaugh concurrence, which stakes out some middle ground to moderate a majority opinion.

Gorsuch wrote five concurrences. Unlike the Kavanaugh concurrences, many of the Gorsuch concurrences would push even further than did the majority. Some concurrences push the Court to the right (NFIB v. OSHA, Shurtleff, EgbertWest Virginia v. EPA). Other concurrences push the Court to the left (WoodenVaello Madero).

Justice Barrett wrote four concurrences. In Bruen, Barrett's solo concurrence asked whether the originalist point of inquiry should be 1791 or 1868. Her other three separate writings came in Viking River Cruise (joined by Kavanaugh and Chief in part), Wooden (joined by Thomas), and Tsarnaev (joined by Gorsuch). Unlike Kavanaugh and Gorsuch, the Barrett concurrences do not seek to move the Court to the right, left, or middle. They usually raise some questions to think about, like in Bruen, and last Term, in Fulton.

Now, let's turn to dissents. Justice Sotomayor wrote 13 (!) dissenting opinions. Her work load this term was prodigious.

Then we have Justice Thomas. He wrote 8 dissents. Several of those dissents were solo, and would have gone further than the majority, like in Whole Woman's Health.  And those 8 dissents were on top of 7 majority opinions, and 7 concurrences. On the so-called Thomas Court, Thomas was frequently branching out on his own! He keeps busy. Justice Breyer, in his final term had 8 dissents, with only 1 concurrence. Justice Kagan had 7 dissents, with four concurrences. (To be fair, the Court's three progressives were each credited with authoring Dobbs.)

Justice Gorsuch also wrote 8 dissents. Three were solo YOLO dissents (BabcockKemp, and Shoop). The other 5 were lefty-dissents: Zubaydah (joined by Sotomayor), Patel (joined by Breyer, Sotomayor, and Kagan), Denezpi (joined by Sotomayor and Kagan), George (joined by Breyer and Sotomayor), and Castro-Huerta (joined by Breyer, Sotomayor, and Kagan).

Gorsuch does not fit on a normal ideological scale. For example, the Times plotted him somewhere near Roberts, Kavanaugh and Barrett, but he is not in the center. The same person would dismantle the administrative state but cede half of Oklahoma to Indian tribes. On some cases, he is hard left. On other cases, he is hard right. He is tough to characterize. But, with the law of averages, he falls in the middle.

Justice Kavanaugh wrote two dissents. The first dissent, Concepcion, was a 5-4 case.  I think it is possible that Kavanaugh lost the majority opinion in Concepion after Gorsuch flipped, as Sotomayor had two assignments from January. Kavanaugh's second dissent was in Empire Health. The latter case is the sort of nerdy issue that D.C. Circuit judges seem to enjoy.

Justice Barrett wrote two dissents. The first Nance v. Ward, was joined by Justices Thomas, Alito, and Gorsuch. (I believe this was the only time that Thomas assigned Barrett a dissent this term.) The second was Biden v. Texas. Recall that Barrett agreed with the Chief on the merits, but found the Court lacked jurisdiction.

In total, Justice Sotomayor had the most opinions with 24. Justice Thomas trailed behind her with 22, and Justice Gorsuch had 20. The Justices with the fewest opinions were Barrett with 12, and Roberts with 11. Historically, the Chief Justice does not write separately often. And last year, in which Barrett had a partial term, she wrote only one concurrence (Fulton) and three dissents. After the Chief, Barrett seems less likely to write separately.