On this blog, I’ve gotten very used to commenting on the dueling arguments between the authors of dissenting and majority opinions, with the occasional new perspective offered by a concurrence.
But I’m now out of practice.
It’s been five months since any Justice authored a dissent or a concurrence to a merits decision of the Texas Supreme Court. (( In those five months, the Court has issued 15 per curiam opinions and 11 signed majority opinions. The most prolific author so far is Justice Green, with 3 majority opinions.
The only dissent disagreed with the Court’s denial of review — which is not a decision on the merits — in Watson v. Newman, No. 09-1066 (docket and briefs), a case about the immunity extended to off-duty policemen. I briefly mentioned it in this longer post about that day’s order list. ))
This is an unusual level of unanimity, and it deserved a mention here, regardless of what might happen with tomorrow’s order list.
Concurrences and dissents are sometimes collectively called “separate opinions,” in which at least one Justice stands apart from the Court to express a divergent view.
Between 2001 and 2009, the Court never had a year in which it issued fewer than 25 such separate opinions in merits cases. The absence of any such opinions so far this year marks a sharp departure from 2008 and 2009, when the Court issued around 50 separate opinions per year. (( I would do the math to extrapolate this year’s projected total, but anything times zero is zero. ))
This might just be the luck of the draw. It might be a natural result if the Court is focusing on less contentious cases while its new Justice gets time to weigh in on more divided ones. Or it might reflect a new trend.
That last possibility would of course be the most interesting for Court watchers. Besides the remarkable unanimity so far this term, the other clue pointing in that direction might be the unusual voting pattern in City of Waco v. Kirman, No. 08-0121 (docket and briefs) — where Chief Justice Jefferson elected not to join the bulk of the Court’s opinion. But, instead of authoring a separate opinion to express his disagreement, he simply joined the single ground in the opinion with which he agreed. (( The voting breakdown in the City of Waco case: “Justice Green delivered the opinion of the Court, in which Justice Hecht, Justice O’Neill, Justice Wainwright, Justice Medina, Justice Johnson, Justice Willett, and Justice Guzman joined as to Parts I–V, and in which Chief Justice Jefferson joined as to Part IV.” )) Of course, City of Waco might just be an outlier. The Chief Justice might have felt that, in this unusual case, his vote could express his view without the need for further elaboration. (( One might infer from his vote that he thought it unnecessary to reach the broader policy questions discussed in the opinion when the narrower, alternative ground discussed in Part IV was available. ))