Bonus 163: How (Not) To Count Supreme Court Rulings

As we enter the season of sweeping numerical claims about the Supreme Court's October 2024 Term, it's worth rehashing out the major flaws that are baked into (almost) all of those assertions.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit.

This week has brought with it the typical flood of “end-of-term” stories, podcasts, and public events. As my own participation in some of these suggests, I certainly think there is value in efforts to look at the work of the Court on a more holistic basis—and not just as the sum of a series of individual decisions, however worthy those decisions are of their own specific analyses. At the same time, I fear that many of those efforts are selectively holistic in ways that potentially bury some pretty important takeaways (or lead folks to make claims that aren’t really true—like “Justice Kagan was in the majority more than Justices Thomas, Alito, and Gorsuch”).

To some degree, this has always been a problem with these kinds of curtain-closing pieces. But I wanted to use today’s bonus issue to explain how the proliferation of emergency applications, in both quantity and quality, poses unique (and uniquely serious) challenges to how we measure the Court’s overall output. As I explain below the fold, although there’s no objectively clear answer to which rulings should and shouldn’t “count,” there’s also no question that many of the most visible end-of-term wrap-ups (with special apologies to SCOTUSblog) are leaving out rulings that they absolutely ought to be including—defects that, among other things, may make the Court appear to be less ideologically divided than what a more-complete account would suggest.

For those who aren’t paid subscribers, we’ll be back with our regular coverage of the Court (no later than) Monday. For those who are, please read on.