(Posted June 7, 2024) You know me; I see something that looks like a statistical anomaly and I’ve just got to check out the data to see if it pans out. Yesterday I decided to dig into the log of Supreme Court of Virginia decisions to see how The Robes are dividing the chores of writing published opinions.

This review is limited to published opinions because we can’t know who writes the unpubs; the court doesn’t reveal that information. I can figure out some of the authors based on their writing styles, but I’d prefer not to interject my deductions into an otherwise exact count. I started with the month of October 2022 because that’s when the court’s current lineup began to crank out opinions.

This isn’t something that I follow from month to month, but fortunately, it’s very easy to check the opinions. Here’s what I found over that span; these are the numbers of published opinions of the court – dissents not included – by author:

  • Kelsey 11
  • Russell 10
  • McCullough 9
  • Powell 8
  • Mann 7
  • Chafin 2
  • Goodwyn 1

That’s 48 published opinions, about seven per justice on average. For the sake of completeness, we’ve seen eleven unpubs in the span I studied, and no opinions from senior justices.

For a long, long time, the court has insisted that opinion assignments are matters of pure chance. It starts with a random draw out of former clerk David Beach’s hat to see who gets the first case on the docket. After that, the appeals are distributed in the justices’ seating order around the conference-room table until all appeals on the docket are assigned to someone.

Let’s leave aside for now the fact that docket draw these days almost never gets all the way around the table because of the justices’ parsimony when it comes to issuing writs. This is an essay about distribution; not volume. The point is that, in theory, each justice should get a reasonably equal share of the workload.

I concluded several years ago that horse-trading goes on up there, as one justice swaps the Smith appeal for the Jones case because of an interest in the subject matter. Court insiders might fuss about that, but I’ve seen too much evidence to acknowledge the possibility that no such trades occur.

Yesterday’s counting process confirmed the bare suspicion that led me to review these numbers: The chief and Justice Chafin have been almost completely shut out of the opinion-writing process recently. Neither has written an opinion of the court this year, and the chief didn’t write one in 2023, either. He last spoke for the full court twenty months ago, at the very beginning of my survey.

I believe in coincidences only over a very short time frame. With a year and a half of data, this can’t be a matter of chance anymore. It’s certainly possible that those two drew some of the unpubs, and indeed, I believe that that’s the case. But even if they got all eleven – which I seriously doubt – they still got “skipped” multiple times on docket-draw day.

What gives? The candid response is that I don’t know. I see no statistics-based explanation for this much of an imbalance over this much time, and I firmly believe that there’s a subjective component that I, as a guy who’s always been outside looking in at the court, cannot describe. In theory, these two justices could be more likely than their colleagues to urge unpublished status for their assigned cases. That’s a plausible explanation, but I won’t insist that it’s true because I have no evidence for it.