ARE THERE FEWER DISSENTS NOW?
(Posted May 13, 2022) The most recent SCV rulings are starting to get a little dusty – three weeks since the last opinion; seven since the last unpub – so let’s examine a subject that a reader asked me about recently. He perceived that the Supreme Court’s opinions are increasingly unanimous, with fewer of the spirited dissents that spice up the reading process.
I had a general sense of this based on my practice of reading each opinion on its day of release, but I preferred to base my answer on a bit of research. Fortunately, this isn’t hard; you just look through the pages of Virginia Reports and count. Here’s what I found:
- 295 – 36 unanimous; 5 dissents; 88% unanimous
- 296 – 34 unanimous; 3 dissents; 92% unanimous
- 297 – 46 unanimous; 11 dissents; 81% unanimous
- 298 – 48 unanimous; 2 dissents; 96% unanimous
- 299 – 46 unanimous; 6 dissents; 88% unanimous
- 300 – 29 unanimous; 2 dissents; 94% unanimous
With the exception of vol. 297, these all fall in a relatively narrow range from 88% to 94%. The overall average over these six volumes is 89%.
For comparison, I grabbed two adjacent volumes of older reports. I chose volumes 257 and 258, because they predate all of the justices who participated in the six volumes that I surveyed here. In those two volumes, comprising all of the decisions handed down in 1999, there were 117 unanimous rulings and 15 dissents, for a unanimity percentage of – wait for it – 89%!
Let me add the caveat here: I’d far prefer another three-year survey for a better measure, but this will do for a rough comparison. The answer to my pal’s question is no; it looks like the rate of dissents is largely unchanged between these two periods. Of course, volume 297 is a bit of an outlier, but that’s why we use multiple volumes, to normalize short-term aberrations.
This topic suggests a related question: How does the unanimity rate at Ninth and Franklin compare with SCOTUS? That one’s easy, because our estimable pals at SCOTUSblog publish those statistics. In OT20, there were 29 unanimous decisions and 38 with one or more dissents. That’s a unanimity rate of 43%. In OT19, the unanimity rate was 36%, and it was 39% in OT18. That’s a far, far cry from what we see here in Virginia. What gives?
I see several likely explanations for the difference. In no particular order, they include:
- There are nine Robes in Washington and only seven in Richmond, so there are more opportunities for a justice to disagree with his or her colleagues.
- The SCV’s justices are vastly more homogeneous in outlook than are their counterparts across the Potomac. In Washington, the high Court features six conservative justices, no moderates, and three liberals. In Richmond, there are no liberals on the Supreme Court; none. One or two of the justices might plausibly be described as right-leaning moderates, but as a whole, the court is uniformly conservative, as measured by the ultimate yardstick: their votes. More ideological homogeneity means more agreement on rulings.
- The SCV sees far fewer truly hot-button issues than their pals across the river. SCOTUS routinely deals with major political flashpoints – abortion, voting rights, race and sex discrimination, etc. The SCV is much more likely to decide whether a circuit court correctly interpreted a contract provision between a buyer and a purchaser, or whether a judge correctly refused a jury instruction in an eminent-domain appeal.
- This one’s speculation, but there may be a culture of “agreement whenever possible” in the Supreme Court of Virginia. I’m aware that some justices occasionally choose to go along with the majority rather than write a dissent that won’t likely make a difference in Virginia law. That culture of agreement, made famous in reports of the days leading up to the issuance of Brown v. Board of Education, may not exist anymore in Washington. This is a guess because I am not and have never been a court insider.
There may be another explanation that I’m not thinking of, and what I’ve written here is admittedly tea-leaf reading. But there’s no arguing with the stark contrast between the dissent rates in the two courts.