Swelling Supreme Court Decisions, 1995-96 through 2013-14

Commenting last month in the New York Times, Adam Liptak noted that decisions issued by the United States Supreme Court have grown substantially longer over the years, prompting him to choose such terms as “sprawling” and “metastasizing” to characterize the fruit of the justices’ labors.

Had Liptak turned his attention to Wisconsin’s Supreme Court, he would doubtless have offered a similar assessment, because decisions issued by the justices in Madison now require an average of approximately 50 pages to convey their analysis.  Just as striking as the length of these decisions is the pace at which they have grown.  As recently as 1995-96 and 1996-97, Supreme Court decisions in Wisconsin averaged 23 pages.  Thereafter, their length increased steadily until the average had more than doubled by 2007-08—and the following years continued to yield decisions approximately 100 percent longer than those of the mid-1990s.

Averages for each of the 19 terms currently covered by the SCOWstats database are presented in Table 1, and they may also be viewed as a graph.

Table 1    Average Number of Pages per Decision[1]

One factor at work here is the increasing number of concurring and dissenting opinions, which have added to decisions’ bulk.  Tables 2a and 2b reveal that concurrences and dissents accounted for only 3 pages per decision during the earliest term of our period (1995-96), but by 2013-14 the figure had ballooned to 17 pages per decision.  This increase of 467 percent is remarkable, but it accounts for only about half the number of pages by which decisions have grown.  The same tables demonstrate that majority opinions also swelled substantially during these years—from an average of 19 pages in 1995-96 (and 17 pages in 1996-97) to 30 pages in 2013-14 (and 34 pages in 2012-13).

Table 2a                     Average Number of Pages per Decision

Table 2b                     Average Number of Pages per Decision

As one might expect, the average length of majority opinions varies considerably among the justices.  In 2012-13, for instance, majority opinions authored by Justice Prosser averaged 46 pages—77 percent longer than Justice Crooks’s average of 26 pages.  During the following term, the average length of Justice Ziegler’s majority opinions exceeded those of Justice Bradley by 50 percent.  Comparisons between any pair of justices over the three most recent terms are available in Table 3.

Table 3                   Average Length of Majority Opinions Written by Each Justice

Table 4, which covers the earliest years of our period, may be compared to Table 3 as a means of illustrating the rapid increase in the size of opinions over 19 terms.  This information also allows us to focus on three justices (Abrahamson, Bradley, and Crooks) who have served long enough on the court to appear in both tables.   Computing weighted averages for the three terms covered in each table, we find that Justice Abrahamson’s majority opinions averaged 19 pages during the period 1995-96 through 1997-98 and 35 pages during the period 2011-12 through 2013-14—an increase of 84 percent.  Justice Bradley’s majority opinions grew by 39 percent (18 pages to 25 pages), while Justice Crooks recorded an increase of 29 percent (21 pages to 27 pages).[2]

Table 4                    Average Length of Majority Opinions Written by Each Justice

Disputes will persist as to whether the court’s decisions should be described as bloated or comprehensive, but there can be no doubt that recent opinions are much longer than those drafted little more than a decade ago.  Less clear is whether this trend will persist in view of the court’s new rules designed to reduce the time between oral argument and the filing of decisions.  A reasonable hypothesis could surmise that shortening the gestation period of decisions will also affect their birth weight, although the current turmoil on the court complicates predictions on this score.  However, with the conclusion of the 2014-15 term close at hand, we will soon be able to replace conjecture with certainty.

[1] The figures include title pages, majority opinions, concurrences, and dissents.

[2] The weighted average for Justice Crooks covered only two terms in Table 4, because he did not join the court until the 1996-97 term.  Weighted averages are used because the number of opinions written by the justices varied slightly from term to term.