Wednesday, October 2, 2013

Graphic Recap: Roberts to Alito - Lippman to Pigott (Part 5 of Supremes vs NY Court of Appeals: Judicial Output [with Charts!])

Before going further, let's recap what we've seen so far. Some of this will be striking.

We'll do it in a few relatively uncluttered graphs that will help to make the comparative numbers stand out.

Thus far in this series, we've looked at the judicial output of 7 Justices and 5 New York Judges--all but the 2 most junior members of each court. And we've been looking at the past year--specifically summer break 2012 to summer break 2013. (We'll take up the remaining members of the 2 courts--the 2 most junior members of each--in the next post.)

Let's start the recapping with the figures for total judicial opinions. That is, the sum of majority + concurring + dissenting opinions authored by each of the Justices and Judges we've considered in the preceding posts. And we'll now include the average number for each court.
(click to enlarge)
Chart 1 reflects what we've been seeing in this series. In general, the judicial output of the New York Judges exceeds that of the Supreme Court Justices. Significantly so. (And as we'll see, the contrast in the next few charts is even sharper.)

Of the 5 New York Judges, 4 of them (Lippman, Graffeo, Smith, and Pigott) authored more judicial opinions than any of the 7 Justices. Even the remaining New York Judge (Read) wrote more than 3 of those Justices and the same number as 1 of them.

Stated otherwise, none of the 7 Justices authored as many judicial opinions as 4 of the 5 New York Judges. Only 3 of them wrote more than the other Judge.

Perhaps the best way to underscore the contrast between the 2 courts is to look at the averages. As reflected in Chart 1, the New York Judges on average authored twice again as many judicial opinions as did the Justices. That's an average of 32 judicial opinions for the year for the New York Judges; an average of 20 for the Justices.

But as sharp as that contrast is, it is sharper still when we look behind these numbers.

Specifically, when we consider majority opinions. That is, when we look at the the number of judicial opinions that actually decided the cases before the respective courts. The opinions that garnered at least a majority of the votes and represented the opinion for the court itself.

So again, how many did each Justice and Judge author, and what are the averages for the 2 courts? Let's look.
Could it be more clear? Indeed, as mentioned previously, it is striking. Every one of the 5 New York Judges authored many more majority opinions--i.e., again, deciding opinions-- than did any of the 7 Justices. Not even close.

Most of the New York Court of Appeals Judges produced more than twice as many opinions for their court as any of the 7 Justices did for theirs. The remaining New York Judges wrote twice as many as some of the Justices and almost twice as many as others. That's right, not even close.

Now take a look at the averages. Those figures only underscore the contrast. At the Court of Appeals: an average of 19 majority opinions per Judge. At the Supreme Court: an average of 8 per Justice. Yes, more than double the output. More than double the number of opinions that actually decide cases.

(And yes, to repeat what was said in the first post in this series:
I know there's the but, but, but, and the yet, yet, yet, and the what ifs, and the did you considers, etc....
For whatever reason--and partisans of each court will certainly have theirs--the [Judges] of New York's highest court ha[ve] been much more prolific in producing judicial opinions than ha[ve] been [the Justices]. These are just the facts. Unembellished, unelaborated, unexplained--but still the facts.)
Now let's take a quick look at the other judicial opinions. Those opinions other than majority that make up the total for each Justice and Judge. That is, the separate concurring and dissenting opinions.
Ah! This chart makes clear why the numbers for total judicial opinions written by the Justices compared to the New York Judges are even close. On average, the Justices wrote approximately the same number of non-majority opinions as did the Judges.

That is, as many opinions that did not decide the case: separate concurrences [i.e., opinions that agree with the majority's decision, but the author has something different to say] and dissents [i.e., opinions that disagree with the majority's decision] combined. The Justices and Judges both averaged a little more than 12 apiece.

New York Judge Robert Smith is the most prolific in this category by a considerable margin. After him, however, are 3 of the Supreme Court Justices. At the other end of the spectrum, the numbers for 2 of the New York Judges are the lowest among all the Justices and Judges represented here.

Finally, let's give this majority versus non-majority contrast some perspective. Let's juxtapose the averages for majority opinions and separate concurrences + dissents. Here it is.
There it is. Two things jump out from the chart. (Well, at least 2, but they're the most salient for our purposes.)

The average number of majority opinions (i.e., yes, deciding opinions) authored by the New York Judges dwarfs the number for the Supreme Court Justices. We saw that above in Chart 2.

But here's the second point. On average, the Supreme Court Justices wrote more separate concurrences and dissents (i.e., opinions that did not decide the case) than majority opinions (i.e., opinions which did). The reverse is true for the New York Judges.

Let's put all this a different way:
It's not only that the 5 New York Judges average more than twice as many deciding opinions as the 7 Justices. But while, on average, the New York Judges authored many more of those deciding opinions than they did separate, non-deciding ones (half again as many), the Supreme Court Justices wrote many more non-deciding opinions than deciding ones (half again as many, as well). Hmmm.

Make of it what you will. Those are just the facts.

In the next post, we'll look at the remaining Justices and Judges--the 2 most junior of each court. There is a wrinkle however. The 2 junior New York Judges were only recently appointed and, in fact, neither has served on the Court of Appeals for even a half year. We'll figure some way to handle that.