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In 1989, Antonin Scalia joined the Supreme Court decision protecting the burning of the American flag. Texas v. Johnson made him part of a five-justice majority that included Brennan, Marshall, Blackmun, and Kennedy. He wrote no separate opinion. The vote nonetheless matters because it captures an aspect of Scalia that the standard political portrait can miss: when he thought the First Amendment’s rule protected conduct that many conservatives deplored, he joined the rule.

The following Term supplied a different kind of surprise. In Employment Division v. Smith, Scalia wrote the opinion rejecting constitutionally required religious exemptions from neutral, generally applicable laws. Religious-liberty advocates on the right have spent much of the subsequent generation seeking ways around Smith. Scalia’s reasoning rested on the language and existing Free Exercise doctrine, as well as the difficulty of a case-by-case compelling-interest test. The decision reflects a familiar Scalia instinct: a preference for a rule that limited judicial balancing.

Those cases are a good place to start because they make the larger question concrete. Scalia changed the Court’s vocabulary of constitutional interpretation, and he often pushed its results to the right. His judicial commitments also had consequences that did not reliably track contemporary political preference. The question is how often and in what settings those commitments—not just outcomes—defined his opinions.

The answer here comes from a structured reading of 108 signed Scalia opinions: an even mix from his early, middle, and late Supreme Court years, across majorities, concurrences, and dissents. The pattern is less a story of conversion than of a durable toolkit. Text, precedent, categorical rules, and resistance to balancing appear throughout. Original-public-meaning analysis becomes more explicit over time, especially in criminal procedure.

The method was visible before SCOTUS

Scalia’s D.C. Circuit years offer a short prologue. Its administrative and statutory docket should not be pooled with the Supreme Court constitutional data. Yet several opinions already show familiar habits: close attention to enacted language, skepticism toward judicial supplementation of a statutory scheme, and a preference for rule-bound resolution over open-ended balancing. In National Coalition to Ban Handguns v. BATF, Scalia treated statutory text as controlling despite inconclusive legislative history. In In re Reporters Committee for Freedom of the Press, he treated historical practice as a constraint on constitutional expansion.

Those opinions do not establish that the Supreme Court justice was fully formed before 1986. They do establish that the later pattern did not arrive suddenly with a new title or a new set of colleagues.

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As the Court changed, Scalia’s place changed too

Scalia’s ideological location changed markedly over time, at least on the Martin–Quinn estimates. His score rose from 1.39 in 1986 to 3.54 in 1999 and remained near that level in 2000. It later declined, reaching 1.59 in 2015. For nearly all of 1987 through 2011, he ranked second from the Court’s ideological right. After Alito’s arrival, he ranked third from the right alongside Thomas and Alito.

That trajectory matters, though it should not be mistaken for a measure of originalism. It describes voting location relative to an evolving Court. Scalia’s position became more distinctive during the 1990s and less distinctive in the Roberts years partly because the Court acquired justices who were estimated to his right. A justice’s numerical location can shift even if the underlying commitments in his opinions remain relatively stable.

The graph above has annual Martin–Quinn estimates for Scalia, the Court median, Thomas, and Alito. Vertical reference lines mark the terms in which Thomas and Alito joined the Court.

The coalition data tell a related story. In constitutional cases, Scalia’s agreement with Rehnquist averaged 86 percent in the early period and 81 percent in the middle period. His agreement with Thomas was 91 percent early, 95 percent in the middle period, and 89 percent late. Agreement with Kennedy fell from 83 percent early to 72 percent late. Roberts and Alito became his closest regular partners in the final period after Thomas. The relevant change was partly one of relationships: the Court’s center and its conservative bloc were reorganized around him.

That institutional story helps put familiar labels in perspective. The raw number of constitutional opinions Scalia authored also fell over time—from 136 in the first nine Terms to 103 in the next ten and 85 in the final eleven—but the share of constitutional cases in which he wrote remained near 40 percent after the early period. The more telling shift was where his distinct voice sat within the Court. By the Roberts years, Scalia was still a powerful author and dissenter, though he was no longer the most conservative member of the Court’s conservative wing.

Term-by-term agreement rates in shared constitutional cases, displayed as a heat map above. The figure records voting coalitions, not interpretive method or ideology.

Originalism had company

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In terms of coding, references to “original meaning,” “ratification,” “the Framers,” “history,” “tradition,” “text,” “balancing,” and “stare decisis” identified passages for review; the score reflected whether the opinion treated that source of authority as peripheral, material, or decisive. Heller, for example, received a high original-public-meaning score because its analysis turned on what the Second Amendment’s text conveyed when adopted. A loose reference to “the Framers” did not establish original intent; that score required the opinion to rely on what particular Framers or ratifiers intended or expected.

The opinion sample makes the central distinction clearer. Original-public-meaning reasoning was central—meaning a material premise or principal justification—in 19 percent of the early-period opinions, 31 percent of the middle-period opinions, and 39 percent of the late-period opinions. Framing-era history followed a similar path, rising from 17 percent to 33 percent and then remaining at 33 percent.

Those increases are meaningful, but they are only part of the picture. Ordinary constitutional text was central in 72 percent of the early sample, 97 percent of the middle sample, and every late-period opinion. Precedent was central in 97 percent, 100 percent, and 89 percent, respectively. Rule-like or anti-balancing reasoning was central in all but three of the 108 opinions.

Precedent, in particular, played a more complicated role than the popular image of Scalia the overrule-er suggests. In 47 of the 108 opinions, he followed precedent; in another 40, he criticized a precedent but applied it. He urged overruling in 16. The proportions changed somewhat over time, with more late opinions pressing against precedent, yet the recurring picture is of a justice who treated precedent as an object of argument rather than simply an obstacle to be cleared.

Each panel above reports the share of the 36 coded core opinions in a period in which the method was material or principal. All panels use the same 0–100 percent scale.

The contrast is especially helpful in reading Employment Division v. Smith. The 1990 opinion is often presented as an awkward fit with the originalist label because it curtailed constitutionally required exemptions from generally applicable laws. Its reasoning, however, fits a recurring Scalia pattern. Smith relied heavily on text and precedent and rejected the compelling-interest balancing framework as unadministrable. Historical inquiry was peripheral. That was an instance in which a different part of Scalia’s methodology did the decisive work.

That pattern could run in either direction. In Burnham v. Superior Court, Scalia used historical practice to defend a traditional rule of personal jurisdiction. In Harmelin v. Michigan, his opinion treated the Eighth Amendment’s original understanding as a reason to reject proportionality review. Both are recognizably originalist opinions, yet each also sought a rule that would constrain judge-by-judge judgment. The combination—history joined to rule-making—became especially visible in his later criminal-procedure work.

Crawford v. Washington and District of Columbia v. Heller illustrate the later, more visible originalist side of the record. In Crawford, founding-era materials reconstructed the Confrontation Clause and supported a categorical rule for testimonial statements. In Heller, text, founding-era sources, structure, and historical practice combined to define the Second Amendment’s scope. These are essential cases, though they should not be treated as an average Scalia opinion. Their significance lies partly in showing how historical analysis could build firm doctrine rather than simply decorate a result.

The original-intent audit sharpens the point further. Original intent was coded separately from original public meaning and from the use of founding-era history. It appeared at any level in 19 percent of early opinions, 14 percent of middle-period opinions, and 17 percent of late opinions. It was material in only one opinion per period and never the principal justification. The evidence supports a description of Scalia as an original-public-meaning originalist far more readily than as an original-intent originalist. Lee v. Weisman, McCreary County v. ACLU, and NLRB v. Noel Canning are the material-intent examples; they do not form an ascending career-wide trend.

That distinction is worth keeping because it avoids treating every reference to the Founding as the same claim. Heller asked what the Second Amendment’s words conveyed when adopted. Crawford reconstructed the confrontation right through the common-law materials that informed the constitutional text. In the three cases where original intent was material, Scalia placed more weight on what the founding generation expected the relevant constitutional provision to accomplish. The data show a substantial historical method; they do not show a career built principally on recovering the subjective intentions of individual Framers.

Where history did the most work

The rise in original-public-meaning reasoning is not evenly distributed. It is clearest in criminal procedure. In the coded criminal-procedure opinions, the share with original-public-meaning analysis central rose from four of ten early opinions to six of nine middle-period opinions and seven of eleven late-period opinions. The comparable First Amendment counts are one of ten, three of twelve, and two of eight. That distinction counsels against describing every late Scalia opinion as more originalist than every early one.

The speech comparison also returns the article to Texas v. Johnson. Scalia’s vote there was doctrinally conventional in one sense: the majority treated flag burning as expressive conduct protected against a state’s effort to punish its message. The larger significance lies in the absence of a matching historical surge in his First Amendment opinions. The late-career increase in original-public-meaning reasoning was concentrated in settings where historical materials could define a constitutional rule with unusual precision, especially the Fourth, Fifth, and Sixth Amendments.

The criminal-procedure line also helps explain why the later opinions were so influential. Apprendi, Ring, Crawford, Giles, Melendez-Diaz, Jones, and Jardines used historical materials to replace standards with rules. In those fields, history gave Scalia a way to resist balancing tests and doctrinal multi-factor inquiries that he had criticized throughout his career.

Some leading cases resist simple categorization. Texas v. Johnson remains a vote-level counterpoint rather than an authored-opinion data point because Scalia wrote no separate opinion. Smith supplies the corresponding view from inside the opinion itself: its rejection of balancing is visible in the reasoning, rather than inferred from its result. A related administrative-law example lies outside this article’s constitutional dataset. Scalia joined Chevron and later wrote the majority opinion in City of Arlington v. FCC, applying Chevron deference over a dissent by Chief Justice Roberts, Kennedy, and Alito. That line shows the same willingness to accept an institutional allocation of interpretive authority even when later conservative legal politics turned against it. Boumediene v. Bush, NFIB v. Sebelius, and Obergefell v. Hodges reveal other pressures—precedent, institutional design, and practical consequences—that can be obscured by a single-word label.

The legacy: a key architecture and a changing influence

The empirical record supports an account of continuity with meaningful development. Scalia did not simply become more conservative and therefore more originalist. His Martin–Quinn score peaked in the middle of his career, while original-public-meaning reasoning was most frequent in the late sample. His place on the Court and his method thus followed different trajectories.

His durable contribution was to make a cluster of interpretive commitments more available and more consequential: constitutional text, historically grounded meaning, precedent pressed or challenged, and rules that narrowed the domain of judicial balancing. The flag-burning vote, Smith, and the Chevron line make the point vivid because each imposed a cost on an overly simple ideological account. Over time, original public meaning became more explicit and especially powerful in particular doctrinal settings. That evolution helps explain why Scalia remains a turning point in the Supreme Court’s history even when his opinions do not fit a single label.

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When lawyers argued before the D.C. Circuit in 2025, the court was considering disputes over the attempted downsizing of the Consumer Financial Protection Bureau, the President’s power to remove members of independent agencies, access to billions of dollars in federal climate grants, and the procedures available to migrants facing removal. These were appeals with immediate consequences for federal programs, regulated businesses and the structure of the executive branch. They also produced some of the court’s longest and most sharply divided opinions.

The wait for those decisions has been growing. Federal judiciary statistics show that, among cases terminated on the merits during the year ending September 30, 2025, the D.C. Circuit took a median of 5.4 months to move from oral argument to its final opinion or order. The national median was 3.2 months. No other regional circuit reported a longer median interval.

An unresolved D.C. Circuit appeal can leave federal grants frozen, agency personnel decisions unsettled, regulatory obligations uncertain or an injunction governing executive action in place. The timing can affect reserves, compliance plans, settlement leverage and preparations for rehearing or Supreme Court review.

A review of 219 matters argued before the court during calendar year 2025 provides a closer look at that wait. It also permits a preliminary examination of who sat on the panels, whether panel composition corresponded with decision time and where partisan divisions became most visible. The results show a court whose panels generally reflected the Democratic-leaning composition of its bench, although the relationship between panel partisanship and decisional speed was considerably less straightforward.

A Timing Gap That Has Widened

The D.C. Circuit has long required more time after argument than the national appellate median, but the distance between the two has increased. In fiscal year 2015, the court reported a median argument-to-disposition interval of 3.7 months, compared with 2.1 months nationally. By fiscal year 2025, those figures had risen to 5.4 and 3.2 months, respectively.

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Size and Momentum

In August 2025, the federal multidistrict litigation over Depo-Provera had about 550 pending actions. One year later, that number had climbed to 6,294.

The increase—more than tenfold in twelve months—did not make Depo-Provera the country’s largest mass tort. Johnson & Johnson’s talc litigation still had nearly 69,000 pending actions in August 2026. Bard’s hernia-mesh litigation had more than 23,000, and the aqueous film-forming foam, or AFFF, litigation had more than 15,000.

But Depo-Provera illustrates why the usual ranking of mass torts by case count can miss an important part of the picture.

Mass-tort litigation is often described in snapshots: how many cases are pending, which MDL is largest, and how many claims have accumulated. Monthly data from the Judicial Panel on Multidistrict Litigation make it possible to look at the same proceedings differently—not just by size, but by how quickly their pending inventories are changing.

On that measure, Depo-Provera stands out. Its pending inventory increased by 5,744 actions between August 2025 and August 2026, or roughly 1,044%. More than 4,000 of those net additions occurred during the most recent six months.

Several other relatively young proceedings showed similar, if less extreme, growth. Bard’s port-catheter litigation increased from 1,807 pending actions to 3,734 over the same twelve-month period, an increase of about 107%. The GLP-1 litigation grew about 79%, Uber sexual-assault litigation about 75%, and the social-media adolescent-addiction litigation about 63%.

The largest MDLs followed a very different pattern. Talc, despite having more than ten times as many pending actions as Depo-Provera, grew by only about 3.6% over the year. Bard hernia mesh declined. The proton-pump-inhibitor litigation was essentially flat.

That distinction is meaningful to follow because current size and current momentum describe different features of a proceeding. A 20,000-case MDL with a declining inventory is not situated the same way as a 5,000-case proceeding whose inventory has doubled over the past year.

The broader federal docket is also highly concentrated. As of August 3, 2026, the JPML listed 162 active multidistrict litigations containing 205,540 pending actions. Just 21 proceedings with at least 1,000 pending actions accounted for more than 94% of that inventory. The five largest alone accounted for roughly 64%. Those figures show where the cases are concentrated. They do not necessarily show where the mass-tort docket is moving.

The contrast between Depo-Provera and the largest established MDLs suggests a different way to read the monthly numbers: not simply as a ranking of litigation size, but as a measure of litigation momentum.

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When Growth Slows

AFFF shows why even momentum needs to be measured carefully. From August 2025 to August 2026, the AFFF MDL grew from 12,064 pending actions to 15,246, an increase of roughly 26%. Viewed only at those endpoints, it looks like one of the faster-growing large mass-tort proceedings.

The monthly path tells a different story. By November 2025, AFFF already had 15,249 pending actions. In February 2026 it had 15,216. By August, the count was 15,246. In other words, almost all of the year-over-year increase occurred during the first part of the period. Over the most recent six months, the net inventory increased by only about 30 cases.

That distinction is easy to miss in a conventional year-over-year comparison. A litigation can post substantial annual growth while having effectively stopped expanding in recent months.

AFFF is not an isolated example of why the interval matters. GLP-1 remains one of the faster-growing MDLs, with pending inventory up roughly 79% over twelve months, but its more recent growth is slower than the earlier portion of that period. Other proceedings, including Depo-Provera, Uber sexual assault, Bard Port Catheter and the social-media litigation, continued to add substantial net inventory during the latest six-month period.

The result is a second distinction beyond size and growth: momentum can itself accelerate or decelerate. That is especially relevant in mass-tort litigation because the headline number tends to lag the underlying direction of the proceeding. A large annual increase may reflect a surge that has already subsided. A smaller current inventory may be expanding much more rapidly than the largest cases on the docket.

The monthly JPML figures do not reveal gross filing volume. If 500 new actions enter an MDL while 400 are dismissed or otherwise leave the pending docket, the reported inventory rises by only 100. The figures therefore measure net inventory movement rather than new claims filed.

But for tracking trajectory, that limitation does not erase the signal. A proceeding whose pending inventory has been essentially flat for six months is behaving differently from one adding thousands of net cases over the same period, even if both posted strong year-over-year growth.

AFFF makes that point particularly clearly. Its twelve-month increase remains substantial, but its recent path looks much more like a plateau than continued rapid expansion.

The practical implication is straightforward: a single growth rate is not enough. To understand where a mass tort is moving, it helps to know not only how much its inventory has changed, but when that change occurred.

What ‘Active’ Conceals

The opposite end of the spectrum is just as revealing. Zantac remains an active MDL, but its current posture looks nothing like Depo-Provera or GLP-1. As of August 2026, only 847 of more than 15,000 historical actions remained pending, or about 5.6%. The 3M Combat Arms litigation provides an even more dramatic example. In August 2024, it still had roughly 238,000 pending actions. Two years later, only two remained pending out of more than 391,000 historical actions. Together, those examples show why “active” is an administrative category rather than a useful description of where a litigation sits in its lifecycle.

The same current case count can carry very different information depending on how a proceeding arrived there. A newer MDL with nearly all of its historical actions still pending may still be accumulating claims and moving toward a larger inventory. An older proceeding with only a small fraction of its historical actions remaining may instead be in a prolonged period of contraction. Several of the larger, mature MDLs fall somewhere between those extremes. Cook IVC Filters, Bair Hugger, Bard hernia mesh, Roundup and the proton-pump-inhibitor litigation all sit below their highest observed inventories during the August 2024 to August 2026 period, and most also declined over the past year.

That creates a useful third dimension for comparing mass torts: not simply size or momentum, but how much of a proceeding’s accumulated federal inventory remains on the docket. The ratio is imperfect. A case leaving the pending count can reflect dismissal, settlement, remand or another procedural outcome, and the JPML data do not identify those outcomes individually. It would therefore be misleading to treat the percentage as a settlement rate or as a measure of substantive success. But it still adds context that the raw pending count lacks.

Consider two MDLs with roughly 4,000 pending actions. If one has about 4,000 historical actions and the other has 15,000, the proceedings are plainly not in the same position. The first may still be near its accumulated high-water mark, while the second has already seen most of its historical federal inventory leave the pending docket. That difference can shape how lawyers, funders, insurers, companies and investors interpret the same headline number. “Four thousand cases remain” conveys something quite different when that figure represents nearly all of a proceeding’s historical actions than when it represents only a small residual share.

A useful description of an MDL therefore needs to separate at least three things: how large it is now, whether its inventory is growing or shrinking, and how much of its historical inventory remains pending. Those measures can point in different directions, and the cases that stand out by one measure are not always the ones that stand out by another.

The movement in those rankings reinforces the same point. Some established mega-MDLs remain dominant, but newer proceedings can rise quickly as their inventories build while older ones gradually fall back as their pending counts decline. The federal mass-tort docket is therefore better understood as a changing mix of proceedings at different stages of development than as a fixed leaderboard.

Mass Torts as Trajectories

The examples also show why the timing of an observation can change the story. Depo-Provera looks modest next to talc if the comparison is only current size, but extraordinary if the comparison is twelve-month growth. AFFF appears strongly expansionary on a year-over-year basis but much closer to flat over the most recent six months. Zantac looks small today largely because most of its historical federal inventory has already left the pending docket. Taken together, those examples suggest that an MDL is more usefully described as a trajectory than as a single case count.

That does not require a complicated model. A small set of measures already captures distinctions that disappear in conventional rankings: current pending inventory, short- and medium-term net change, whether growth is accelerating or slowing, the age of the proceeding, and the share of historical actions that remain pending. No single measure establishes whether an MDL is mature, risky, or likely to resolve soon, but their combination can distinguish a young accumulation phase from a large but slowing proceeding or a mature docket that is steadily contracting.

Aggregate MDL statistics can also move sharply when one exceptionally large proceeding changes stage. The 3M Combat Arms litigation is the clearest recent example. Its enormous decline in pending inventory materially altered the overall federal MDL picture even though that shift says little about the trajectory of newer mass torts such as Depo-Provera or GLP-1. The same problem appears at the individual-case level. A large absolute increase can look more significant than a smaller percentage increase simply because the underlying MDL is already enormous, while a very high percentage growth rate can exaggerate the practical significance of a proceeding that began with only a handful of cases.

Both scales are useful. Depo-Provera stands out under both measures because it added thousands of cases while increasing by more than tenfold. AFFF added more than 3,000 cases over twelve months, but its recent movement has been minimal. Talc added more than 2,000 cases over the same year, but against a base approaching 70,000, that represented only modest percentage growth. The comparison is more informative than any one of those numbers viewed in isolation.

The same data can also be useful to different audiences for different reasons. Lawyers may focus on where procedural pressure and resource demands are increasing. Funders may pay closer attention to how quickly a claimant population is building and how long capital may remain deployed. Insurers and corporate defendants may be more interested in whether a large exposure is still expanding or beginning to stabilize, while investors may care when those changes intersect with publicly disclosed litigation reserves or other company-specific liabilities. The JPML data do not answer all of those questions, but they provide a cleaner way to identify which proceedings deserve closer attention.

The current snapshot shows how the country’s largest mass torts are not necessarily its most dynamic ones, and the cases with the highest annual growth are not necessarily the ones still accelerating. Once those distinctions become visible, a harder question follows: whether they are merely descriptive or whether the path of an MDL can be predicted. If younger proceedings tend to pass through recurring stages of accumulation, plateau and contraction, then age, growth patterns and major procedural events may provide useful signals about what comes next.

That question requires a different analysis. The monthly numbers already show why it is worth asking: the federal mass-tort docket is measured regularly, but the more revealing question is what those measurements can tell us about where each proceeding is headed.

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Chief Justice Roberts looks fairly conservative if we examine only the Supreme Court’s closest merits decisions. In cases decided 5-4 or 6-3 over the past four terms, 67.2% of his coded votes fell on the conservative side. That puts him 17.2% from an even 50/50 record—far more conservative looking than he appeared across the Court’s merits docket as a whole.

But take one category of cases out of the calculation and Roberts’s record changes dramatically. Remove the 6-3 decisions in which all six Republican-appointed justices voted in the conservative-coded direction and all three Democratic-appointed justices voted in the liberal-coded direction, and Roberts has 22 conservative votes and 22 liberal votes. Exactly 50/50.

Roberts is the cleanest example, but he is not the only justice whose ideological profile changes. Justices Gorsuch, Kavanaugh, and Barrett also move sharply toward the middle once the conventional ideological 6-3 cases are removed. Justices Alito and Thomas remain much farther to the conservative side. On the other end of the Court, Justices Sotomayor, Kagan, and Jackson remain substantially liberal-coded.

That creates an opportunity to look at the Court’s ideology from a different angle.

An earlier analysis of all merits decisions found a Court with clear ideological poles but also a group of Republican-appointed justices much closer to an evenly divided voting record. Roberts was only 3.4% from 50/50. Barrett was 2.5% away, Kavanaugh 5.1%, and Gorsuch 6.2%. Alito and Thomas were considerably farther to the conservative side, while Sotomayor, Jackson, and Kagan were considerably farther to the liberal side.

Those numbers included everything from unanimous decisions to the Court’s most contentious cases. But the decisions that tend to define public perceptions of the Supreme Court are the close ones. A 5-4 ruling can determine the scope of a constitutional right. A 6-3 ruling can produce headlines about the Court’s conservative supermajority. Looking only at those cases therefore provides a useful test: does the ideological structure seen across the full merits docket become substantially different when the analysis is restricted to the Court’s closest divisions?

The answer is yes—but with an important qualification. The closely divided docket makes almost every justice look more ideological. Much of that change, however, is driven by a particular subset of 6-3 decisions. Once those cases are separated from the rest, the Court’s middle reappears.

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Three Ways to Look at the Same Court

The analysis uses the same basic measure as the earlier study. Each justice’s votes are coded as producing either a conservative or liberal outcome, following the Supreme Court Database approach and its extension to the most recent term. A justice voting conservative 50% of the time has a score of zero. A justice voting conservative 70% of the time is 20 points to the conservative side; a justice voting conservative 30% of the time is 20 points to the liberal side. Absolute distance from 50/50 provides a way to compare the strength of that tendency without treating movement to the left or right as inherently greater.

The new analysis compares three versions of the merits docket.

The first is the full set used in the earlier article. The second includes only merits cases decided by 5-4 or 6-3 votes. There are 67 such cases: 21 decided 5-4 and 46 decided 6-3.

The third removes the pure ideological 6-3 cases. These are cases in which the six Republican-appointed justices all voted in the conservative-coded direction and the three Democratic-appointed justices all voted in the liberal-coded direction. There are 23 such cases—exactly half of the 46 6-3 decisions in the sample and slightly more than one-third of all of the closely divided cases. Removing them leaves 44 merits decisions.

The distinction is important here because two cases can both end 6-3 while conveying very different information about the Court. One type produces the lineup now associated most closely with the Court’s ideological composition: Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett on one side and Sotomayor, Kagan, and Jackson on the other. The other type produces a cross-ideological coalition. In several cases, for example, Roberts, Kavanaugh, and Barrett joined the three Democratic-appointed justices against Thomas, Alito, and Gorsuch. Both results appear in the U.S. Reports as 6-3 decisions. Only one represents a straight division between the Court’s Republican and Democratic appointees.

Separating those categories produces one of the clearest results in the data. Roberts, Gorsuch, Kavanaugh, and Barrett averaged about 4.3 points from 50/50 across the full merits docket. Restrict the analysis to 5-4 and 6-3 decisions and their average distance rises to 16.8 points. Remove the pure ideological 6-3 cases, however, and their average falls back to approximately 4.0 points.

For those four justices, in other words, the closely divided docket initially makes the Court’s middle look almost four times as ideological as it does across merits cases generally. Once the straight partisan-appointee 6-3 cases are removed, that difference almost entirely disappears. The Court’s ideological poles do not behave the same way.

Close Cases Push the Justices Toward the Poles

The first comparison shows why focusing only on closely divided cases can change the picture of the Court. Across all merits cases in the earlier analysis, the average justice sat about 10.5% from an even 50/50 conservative-liberal voting record. Among only the 5-4 and 6-3 cases, that average distance rises to 26.8%.

The change occurs across nearly the entire Court. Alito, for example, was 15.5 points to the conservative side across all merits cases. Among the closely divided cases, he is 41.0 points to the conservative side. Thomas moves from 12.1 points conservative to 30.6.

The same thing happens in the other direction. Sotomayor moves from 17.5 points to the liberal side across the full merits docket to 36.6 points among the 5-4 and 6-3 cases. Kagan moves from 15.7 points liberal to 36.6. Jackson moves from 16.3 to 29.1. The earlier merits analysis placed those justices, along with Alito and Thomas, among the justices farthest from the 50/50 line.

But the effect is not confined to the Court’s ideological poles. Kavanaugh goes from only 5.1 points to the conservative side across all merits cases to 21.6 points in the closely divided cases. Roberts moves from 3.4 to 17.2. Gorsuch goes from 6.2 to 15.7, while Barrett moves from 2.5 to 12.7.

There is nothing especially mysterious about part of this result. Selecting cases because they were decided 5-4 or 6-3 deliberately removes the many decisions in which most or all of the justices agreed. It leaves behind the cases in which disagreement was greatest.

But that alone does not explain the pattern. If closely divided cases simply magnified each justice’s ordinary voting tendencies, we would expect the same basic ideological map, only stretched farther away from the middle. Instead, something more interesting happens when one particular type of closely divided case is removed.

The conventional ideological 6-3 decisions account for much of the apparent movement of the Court’s middle—but much less of the movement at its poles.

Remove the Pure 6-3 Cases, and the Middle Comes Back

Of the 46 merits cases decided 6-3 in the dataset, 23 divide along the Court’s familiar appointment lines: all six Republican-appointed justices vote for the conservative-coded outcome, while all three Democratic-appointed justices vote for the liberal-coded outcome.

Those 23 decisions are only about one-third of the 67 closely divided cases in the analysis. But their effect on the ideological scores is substantial.

Across all nine justices, the average absolute distance from a 50/50 record is 26.8 points when every 5-4 and 6-3 case is included. Remove the pure ideological 6-3 cases and that falls to 16.7 points, a reduction of roughly 38%.

The decline is not evenly distributed. Roberts changes the most. His 67 closely divided votes initially divide 45 conservative to 22 liberal, putting him 17.2 points to the conservative side. Once the 23 pure ideological 6-3 cases are removed, his remaining votes divide 22 to 22.

Kavanaugh moves from 21.6 points conservative to 6.8 points conservative. Gorsuch goes from 15.7 points conservative to just 2.3 points on the liberal side. Barrett moves from 12.7 points conservative to 6.8 points liberal.

Those last two results are not evidence that Gorsuch or Barrett are liberal justices. They show something narrower: among closely divided cases that do not produce the standard 6-3 ideological lineup, their conservative- and liberal-coded votes are sufficiently balanced that both wind up slightly on the liberal side of the 50/50 line.

Taken together, the change for these four justices is striking. Across the entire merits docket, Roberts, Gorsuch, Kavanaugh, and Barrett averaged about 4.3 points from 50-50. Restrict the sample to all 5-4 and 6-3 cases and their average distance jumps to 16.8 points. Remove the pure ideological 6-3 cases, however, and their average falls to approximately 4.0 points.

In other words, the Court’s center-right quartet looks nearly four times as far from an evenly divided voting record when all closely divided cases are examined. But virtually that entire difference disappears once the straight ideological 6-3 cases are taken out.

The second half of that graph is just as important as the first. Alito, Thomas, Sotomayor, Kagan, and Jackson averaged approximately 15.4 points from 50/50 across all merits cases. Among all 5-4 and 6-3 cases, their average rises to about 34.8 points. Removing the pure 6-3 decisions reduces it, but only to about 26.8 points.

Alito remains particularly distant from the middle. His score falls from 41.0 points conservative among all close cases to 36.4 after the pure 6-3s are removed. Sotomayor and Kagan each fall from 36.6 points liberal to 29.5. Thomas falls from 30.6 conservative to 20.5, while Jackson moves from 29.1 liberal to 18.2.

So removing the conventional 6-3 decisions changes both sides of the Court. But it does not change them equally.

For Roberts, Gorsuch, Kavanaugh, and Barrett, the resulting ideological distances closely resemble what we saw across the full merits docket. For the other five justices, the closely divided cases continue to produce much stronger directional voting even after the obvious ideological 6-3 decisions disappear.

That distinction sharpens one of the findings from the earlier analysis. The first article described Roberts, Barrett, Gorsuch, and Kavanaugh as substantially closer to the middle than Thomas and Alito, while the three Democratic appointees were farther to the liberal side. The close-case analysis suggests that this pattern was not simply being produced by unanimous and lopsided decisions.

Even in the Court’s most closely divided cases, a similar middle reemerges once the cases in which ideology perfectly predicts all nine votes are set aside. The next question is what those remaining cases actually look like.

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The Remaining Cases Are Not Random Noise

Removing the pure ideological 6-3 cases does not leave a collection of unpredictable one-off coalitions. Some alternative alignments recur often enough to help explain why the ideological scores move.

The most common is particularly striking. In 10 of the 44 remaining cases, the same six justices wind up on the prevailing ideological side: Roberts, Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson. Thomas, Alito, and Gorsuch are on the other side.

That coalition appears in cases ranging from election law and criminal procedure to administrative law and health care. It includes Reed v. Goertz, Moore v. Harper, Warner Chappell Music v. Nealy, Murthy v. Missouri, Chiaverini v. City of Napoleon, Moyle v. United States, Gutierrez v. Saenz, Nuclear Regulatory Commission v. Texas, FCC v. Consumers’ Research, and Kennedy v. Braidwood Management.

The ideological coding of those cases is not identical. Eight produce liberal-coded outcomes in this dataset, while two produce conservative-coded outcomes. That is itself important. The recurring feature is the coalition, not necessarily a common liberal or conservative jurisprudence. Roberts, Kavanaugh, and Barrett repeatedly separate from Thomas, Alito, and Gorsuch in closely divided cases, and the three Democratic appointees frequently wind up on their side.

Moore v. Harper supplies perhaps the clearest example. The case involved the argument that the Elections Clause gives state legislatures authority over federal-election rules largely free from restrictions imposed by state constitutions and state courts. Roberts wrote the 6-3 opinion rejecting that broad theory, joined by Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson. Thomas dissented with Gorsuch and, in part, Alito. The Court held that state legislatures exercising Elections Clause authority remain subject to ordinary state constitutional constraints and state judicial review.

That is hardly a low-salience case in which ideology would be expected to disappear. It concerned federal elections, partisan gerrymandering and a constitutional theory with potentially significant consequences for state control over election rules. Yet the division was not six Republican appointees against three Democratic appointees.

The same point emerges even more sharply from Allen v. Milligan. There, Roberts and Kavanaugh joined the three Democratic appointees in affirming a lower-court ruling that Alabama’s congressional map likely violated Section 2 of the Voting Rights Act. Roberts wrote that the Court was applying its existing Section 2 precedents rather than accepting Alabama’s proposed changes to the governing framework. Thomas, Alito, Gorsuch and Barrett dissented in whole or substantial part.

Allen is useful for this analysis because it was a 5-4, rather than a 6-3, decision. It shows that the pattern is not simply a quirk of how the 6-3 cases were classified. In one of the Court’s most politically salient voting-rights disputes of the period, Roberts and Kavanaugh supplied the votes necessary for a liberal-coded outcome.

Other cases scramble the conventional alignment even more thoroughly. In Harrington v. Purdue Pharma, the Court held 5-4 that the Bankruptcy Code did not authorize a Chapter 11 plan to extinguish claims against the Sackler family without the consent of affected claimants. Gorsuch wrote the majority opinion, joined by Thomas, Alito, Barrett—and Jackson. Kavanaugh dissented, joined by Roberts, Sotomayor and Kagan.

That lineup is difficult to describe using ordinary partisan shorthand. Four Republican appointees and Jackson formed the majority. Two other Republican appointees joined Sotomayor and Kagan in dissent. The dataset codes the prevailing result as liberal, but the more useful point for present purposes is that the case divided the justices along something other than their appointing party.

The same phenomenon remained visible the following Term. In FCC v. Consumers’ Research, the Court rejected a constitutional nondelegation challenge to the FCC’s universal-service funding system. Kagan wrote for Roberts, Sotomayor, Kavanaugh, Barrett and Jackson; Gorsuch dissented with Thomas and Alito.

Those examples put substance behind the averages. Roberts does not reach a 22-22 record in the non-pure cases because his votes are scattered randomly between two categories. He repeatedly participates in identifiable cross-ideological coalitions. The same is true, to different degrees, of Kavanaugh and Barrett.

Gorsuch is more complicated. He moves even farther statistically—from 15.7 points conservative among all closely divided cases to 2.3 points liberal after the pure 6-3s are removed—but he often gets there through different coalitions. His voting pattern is less closely tied to the Roberts-Kavanaugh-Barrett grouping. That fits the original merits analysis, which noted that Gorsuch’s frequent alignment with the Democratic-appointed justices could make his aggregate record look less conservative than conventional descriptions of his jurisprudence might suggest.

The Vote Count Does Not Tell You What Kind of Split It Was

This points to a distinction that gets lost when Supreme Court decisions are reduced to their margins. A 6-3 decision may represent the Court at its most ideologically predictable. In the 23 pure cases in this dataset, knowing the appointing party of each justice is enough to reconstruct every vote: six Republican appointees on the conservative-coded side, three Democratic appointees on the liberal-coded side.

But another 6-3 decision may tell almost the opposite story. Moore and FCC v. Consumers’ Research also ended 6-3. In both, Roberts, Kavanaugh and Barrett joined all three Democratic appointees against Thomas, Alito and Gorsuch.

The numerical division is the same. The ideological information contained in it is not. That distinction helps explain why the closely divided sample initially makes the Court look so polarized. The 23 pure 6-3 cases are unusually information-dense from an ideological perspective. Every vote in every one of those cases pushes all nine justices away from 50-50 in the direction predicted by the Court’s partisan composition. Repeating that pattern 23 times inevitably has a large effect on the aggregate scores.

The remaining cases work differently. Republican-appointed justices cross the ideological coding line, Democratic-appointed justices sometimes join them, and recurring coalitions emerge that do not correspond to the six-three partisan structure of the Court.

This does not make the pure ideological cases less important. If anything, their frequency is itself notable. Half of all 6-3 merits decisions in this four term sample divide in exactly the conventional ideological direction. A Court on which that happens regularly is plainly a Court in which ideology matters.

But treating all 6-3 decisions as equivalent risks overstating what follows from the vote margin alone. Some 6-3 cases confirm the Court’s partisan structure. Others reveal how frequently particular members of the six-justice conservative majority depart from it.

A Conservative Court, but Not a Six-Justice Ideological Unit

The original merits analysis described a conservative Court with poles on both sides and a center-right group of Republican appointees considerably closer to a balanced ideological voting record. The close-case analysis reinforces that description but also helps explain where it comes from.

If all 5-4 and 6-3 cases are placed together, the distinction nearly disappears. Roberts, Kavanaugh, Barrett and Gorsuch move sharply away from the middle, and the Court begins to look much more like two opposing ideological camps.

Separate out the 23 decisions in which the six Republican appointees vote together against the three Democratic appointees, however, and the earlier structure returns almost exactly. The average distance of Roberts, Kavanaugh, Barrett and Gorsuch falls from 16.8 points to 4.0—slightly below their 4.3-point average across all merits cases.

That is not what happens to the other five justices. Alito, Thomas, Sotomayor, Kagan and Jackson remain, on average, 26.8 points from 50/50 even after the pure ideological decisions are removed. Their close-case voting records remain considerably more directional than their records across the merits docket as a whole.

The resulting picture is therefore not one in which ideology disappears after a statistical adjustment. It is one in which ideology appears to operate differently across the Court.

Thomas and Alito remain strong conservative poles. Sotomayor, Kagan and Jackson remain strong liberal ones. Roberts, Kavanaugh and Barrett participate both in the Court’s conventional conservative majority and in a recurring set of cross-ideological majorities. Gorsuch follows a less conventional path but likewise becomes far less directional once the straight six-three cases are removed. That may be a more apt way to describe the modern Supreme Court than pure vote count.

The Court has a six-justice Republican-appointed majority, and in a substantial number of important cases that majority functions exactly as its composition would predict. But it does not function that way in every closely divided case. And when the cases in which it does are separated from those in which it does not, the difference between the Court’s ideological poles and its more fluid middle becomes hard to miss.

The first analysis showed that the cases included in an ideological measure can change where the justices appear to sit. The closest cases make that lesson even clearer. Sometimes a 6-3 Court really is six against three. Sometimes 6-3 tells a very different story.

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On April 24, the legal fight over prediction markets entered a new phase. The Commodity Futures Trading Commission sued New York in federal court to stop the state from applying its gambling laws to federally regulated prediction markets. The same day, the agency filed a brief in Massachusetts’ highest court asserting that event-contract markets fall within its exclusive jurisdiction.

The CFTC had already begun challenging state regulation more aggressively, including lawsuits against Arizona, Connecticut and Illinois earlier that month. But the April 24 actions made clear that the federal regulator was pursuing the jurisdictional dispute on multiple fronts. Four days later, it sued Wisconsin as well.

The timing was significant. Eighteen days earlier, the U.S. Court of Appeals for the Third Circuit had handed Kalshi the industry’s most important appellate victory, holding in a precedential decision that its sports-event contracts qualified as swaps and that Kalshi was likely to establish that federal law preempted New Jersey from regulating trading on its federally licensed exchange.

For investors, the fight is increasingly about regulatory structure. Prediction markets are already subject to federal oversight. The question is whether they can operate principally under one national derivatives regulator or whether CFTC regulation will coexist with state-by-state gambling restrictions that can determine which contracts may be offered and where.

The litigation docket can make that question look more settled than it is. The dataset for this project, created with the help of Mick Bransfield’s litigation tracker, frozen on Aug. 14, contains 160 docket proceedings involving 100 underlying disputes. Fifty-five involve the central conflict between federal commodities regulation and state regulatory authority. Only 11 selected federal decisions have substantively addressed the issues at the center of that fight. And only one federal circuit has issued a precedential ruling favorable to the federal or platform position on the central issue.

The next phase of the prediction-market story therefore runs largely through the appeals courts.

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A Hundred Disputes Obscure One Central Investment Question

Treating all prediction-market litigation alike obscures the cases most capable of changing the industry’s economics.

The 100 underlying disputes in the database include several different kinds of litigation. Some concern whether the Commodity Exchange Act prevents states from treating sports-event contracts as illegal gambling. Others involve consumer class actions, attempts to recover gambling losses, tribal gaming law, or private disputes over data and market operations.

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Justice Amy Coney Barrett ended the Supreme Court’s 2023 term with two dissents that complicate the usual descriptions of her jurisprudence. In Ohio v. EPA, decided on June 27, 2024, Barrett joined the Court’s three liberal justices in opposing emergency relief from a major environmental regulation. One day later, in Fischer v. United States, she joined Justices Kagan and Sotomayor in arguing that a federal obstruction statute covered some conduct associated with the attack on the Capitol on January 6, 2021.

The two positions pointed in different directions. Barrett resisted judicial intervention in Ohio because the challengers were asking the Court to resolve a technically complex administrative dispute on an emergency record. “The equities counsel restraint,” she wrote, stressing that the Court was acting without full briefing or reasoned lower-court opinions. Her questions at oral argument had concentrated on the same problem. She asked whether the dispute was “cert worthy” in its existing posture and whether the vehicle problems identified by other justices should weigh against intervention.

In Fischer, Barrett thought the Court had been too restrained. Congress had enacted broad language prohibiting anyone from corruptly obstructing or impeding an official proceeding, and Barrett concluded that the majority had performed “textual backflips” to confine that language to evidence-related conduct. “Statutes often go further than the problem that inspired them,” she wrote, “and under the rules of statutory interpretation, we stick to the text anyway.” Her questioning at argument foreshadowed that conclusion. When the government hesitated to say whether a protester who stopped the electoral-vote count would violate the statute, Barrett cut through the qualification: “Yes. Say you can. You can. Just say you can.”

Together, the cases expose a judicial instinct that is easy to miss when Barrett is described simply as a conservative, an originalist, a proceduralist, or a former clerk to Justice Scalia. She often measures the reach of a proposed decision against the strength of the authority offered to support it. The technical record and emergency posture in Ohio could not carry the intervention the applicants sought, while the enacted language in Fischer could carry a broad interpretation even though that reading produced an unconventional coalition.

That distinction runs through Barrett’s voting, writing, and oral-argument questions. She repeatedly asks where the asserted authority comes from, which legal test governs, how far the proposed rule extends, whether it fits the record, and whether the case can be resolved through a narrower route. These questions do not consistently move her toward a liberal or conservative result. They help determine how much doctrinal or institutional reach she believes the available legal warrant can support.

The resulting jurisprudence can be understood as source-sensitive decisional calibration. Barrett begins from recognizable conservative and originalist premises, but she separately tests whether the Court’s reasoning and remedy are commensurate with the text, precedent, history, record, and procedural vehicle before it. That second inquiry helps explain why she usually votes with the Court’s conservatives, why she sometimes crosses conventional lines, and why she so often writes separately to qualify a majority she otherwise joins.

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A Conservative Justice Whose Coalitions Depend on the Subject

Barrett’s voting record has a clear center of gravity. Across 311 Supreme Court decisions in the Supreme Court Database, Justice Kavanaugh is her closest voting neighbor. They agreed in 83.6% of nonunanimous decisions and 77% of close decisions, with Chief Justice Roberts generally ranking second. Those observed coalitions place Barrett closer to Kavanaugh and Roberts than a measure based only on the ideology of appointing presidents would predict.

The overall numbers conceal substantial variation by subject. In judicial-power cases involving standing, jurisdiction, remedies, and the authority of federal courts, Barrett agreed with Kavanaugh in 95.2% of nonunanimous decisions and was on the prevailing side in 97.3% of all cases. That stability fits opinions such as Murthy v. Missouri, in which she required plaintiff-, defendant-, and platform-specific proof before permitting a sweeping injunction regulating government contacts with social-media companies.

Her First Amendment pattern is different. Justice Gorsuch becomes her closest colleague, agreeing with her in 91.7% of nonunanimous cases and in all seven close cases in the dataset. Barrett’s writings in this area also show a distinctive concern with how history becomes law. During oral argument in Vidal v. Elster, she repeatedly asked the government to identify the governing test: “Just tell me what the analysis is.” Her concurrence later rejected the proposition that historical tradition could resolve the constitutional question by itself. “A rule rendering tradition dispositive is itself a judge-made test,” she wrote, demanding a justification connecting the tradition to constitutional text, precedent, or the function of trademark law.

Economic and regulatory disputes produce her least stable coalitions. Barrett agreed with Kavanaugh in only 70.6% of nonunanimous cases classified as Economic Activity, a broad category encompassing administrative law, bankruptcy, commercial statutes, patents, and labor regulation. Nine of the 23 decisions in which Barrett joined at least two liberal justices while three conservative colleagues dissented arose in this category. Four of the five 5–4 majorities in which she disagreed with both Kavanaugh and Roberts also involved economic or regulatory statutes: Becerra v. Empire Health Foundation, National Pork Producers Council v. Ross, Harrington v. Purdue Pharma, and Medical Marijuana, Inc. v. Horn.

This concentration is worth observing because technical statutory cases often separate interpretive method from a justice’s expected policy alignment. The disputes may turn on the unit regulated by a statute, the remedy Congress authorized, the relationship between two provisions, or whether an agency and lower court developed an adequate record. Barrett’s attention to those questions can reinforce conservative outcomes, as it frequently does, but it can also pull her away from her usual partners when their preferred result demands a strained textual limitation or an expansive judicial remedy.

The issue-conditioned pattern does not make Barrett a general centrist or median justice. Her departures are concentrated in fields where legal categories, institutional authority, and remedial consequences are unusually contested. The more useful question is therefore not how often she breaks with the conservative bloc in the abstract, but which kinds of legal disputes make that break more likely. Economic and regulatory cases provide the clearest answer.

Where Barrett Is Most Likely to Break Ranks

Barrett’s unconventional votes cluster in economic and regulatory disputes, where statutory detail and remedial design can matter more than an easily identifiable ideological position. The Supreme Court Database places these cases in a broad Economic Activity category that includes administrative law, bankruptcy, patents, labor regulation, and commercial statutes. That breadth requires caution when describing the category as a unified field, but it also captures the type of dispute in which Barrett’s usual coalition is most likely to fragment.

Barrett agreed with Kavanaugh in only 70.6% of nonunanimous Economic Activity cases, well below their agreement in civil-rights, criminal-procedure, and judicial-power cases. Nine of the 23 decisions in which Barrett joined at least two liberal justices while three conservative colleagues dissented fall within the category. Four of the five 5–4 majorities in which she disagreed with both Kavanaugh and Roberts also arose there.

Those four cases do not share an obvious ideological position. In Becerra v. Empire Health Foundation, Barrett joined an opinion by Kagan interpreting the Medicare statute in favor of the federal government. In National Pork Producers Council v. Ross, she joined parts of Gorsuch’s fractured opinion rejecting a constitutional challenge to California’s regulation of pork sold in the state. In Harrington v. Purdue Pharma, she supplied the fifth vote for an opinion by Gorsuch holding that the Bankruptcy Code did not authorize releases extinguishing claims against the Sackler family without the claimants’ consent. In Medical Marijuana, Inc. v. Horn, she joined Gorsuch and the three liberal justices in concluding that the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO) permitted recovery for certain business or property losses flowing from personal injury.

The connective tissue is the definition of legal categories and the consequences attached to them. Barrett’s questions in National Pork Producers focused on whether the challengers’ theory would have “far-reaching consequences,” and her separate writing resisted a rule that could unsettle a wide range of state laws. In Medical Marijuana, she treated RICO’s reference to injury to “business or property” as a limitation on the type of loss recoverable rather than a categorical exclusion of any loss associated with personal injury. The statutory language defined the relevant boundary, even though the resulting coalition divided the Court’s conservatives.

Her liberal-direction dissents show the same concentration. Half of the eight such dissents in the dataset arose in Economic Activity cases, including HollyFrontier, Office of the U.S. Trustee v. John Q. Hammons, Ohio v. EPA, and City and County of San Francisco v. EPA. The results varied, but each dispute required the Court to decide whether a statute, record, or remedial rule could support the reach claimed by one side.

In San Francisco, the majority held that the Clean Water Act did not authorize certain “end-result” provisions in wastewater-discharge permits. Barrett joined the liberal justices in dissent, reasoning that regulated parties could challenge vague or unreasonable permit terms through ordinary administrative-law review. At argument, she asked whether a term that failed to give adequate notice would already be vulnerable as arbitrary and capricious. The availability of that remedy weakened the argument for a broader categorical restriction on the EPA’s authority.

Economic and regulatory cases therefore operate as a stress test for Barrett’s jurisprudence. Her ordinary conservative alignment remains visible, but the absence of a simple constitutional or ideological rule places greater weight on the enacted text, the precise remedy, and the relationship between the asserted authority and its consequences. Those considerations sometimes preserve her usual coalition and sometimes dissolve it.

In the graph above, each point represents an issue area. Horizontal position shows agreement with Kavanaugh in nonunanimous decisions; vertical position shows the rate of strong cross-ideological majority votes. Point size reflects the number of nonunanimous cases, and color reflects Barrett’s separate-writing rate.

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The Questions Barrett Keeps Asking

Barrett’s oral-argument questions repeatedly break a case into five components: the source of authority, the governing test, the limiting line, the fit between the rule and the record, and the appropriate disposition. Counsel may arrive with a broad theory of statutory or constitutional law, while Barrett often asks for the intermediate steps connecting that theory to the judgment the Court has been asked to enter.

The first question is frequently one of legal authority. During the argument in United States v. Tsarnaev, the government defended the supervisory power of federal appellate courts to impose procedural requirements on district courts. Barrett responded with six words: “Where does that authority come from?” Her concurrence returned to the same problem, concluding that the Court had “failed to identify a source for this supposed authority” and that no constitutional or statutory foundation was apparent. The procedural rule might have been sensible, but its usefulness could not create the institutional power needed to impose it.

The next question concerns the governing test. In Vidal v. Elster, the government relied heavily on the historical treatment of trademarks containing a living person’s name. Barrett repeatedly asked how that tradition became a First Amendment rule. “Just tell me what the analysis is,” she said after counsel avoided identifying the level of scrutiny that would apply in a related context. Her concurrence later explained why the missing step mattered: “A rule rendering tradition dispositive is itself a judge-made test.” History could provide evidence, but the Court still needed a jurisprudential reason for treating the historical practice as constitutionally controlling.

Barrett’s line-drawing questions then test whether the proposed test can be confined. In National Pork Producers, she asked whether the challengers’ dormant Commerce Clause theory would have “far-reaching consequences.” In Moody v. NetChoice, she tested the states’ social-media laws against platforms and functions as different as Etsy, Uber, Amazon Web Services, email providers, and conventional social-media feeds. Her concurrence concluded that determining the expressive character of every regulated function in a facial challenge was “a daunting, if not impossible, task.” The diversity of applications did more than complicate the analysis; it undermined the fit between a platform-wide constitutional rule and the activities actually regulated.

Questions about fit become especially prominent when the requested relief exceeds the evidence presented. In Murthy v. Missouri, Barrett pressed the parties on whether the Court could decide standing without revisiting the lower courts’ factual findings. Her majority opinion later rejected the treatment of plaintiffs, government officials, and social-media platforms as unified groups. “Standing is not dispensed in gross,” she wrote, requiring evidence connecting particular government conduct to particular platform decisions affecting particular plaintiffs. A record alleging broad government pressure could not support an equally broad injunction without those causal links.

The same concern can affect the procedural disposition rather than the underlying legal rule. In Moyle v. United States, Barrett asked whether the federal government had sued other states over the interaction between federal emergency-care requirements and abortion restrictions, and she emphasized that Idaho had changed its law after the Court granted review. Her concurrence concluded that the federal government had narrowed its position and that changes in state law had altered the dispute. Those developments made the case presented at argument materially different from the one the Court had agreed to decide, supporting dismissal rather than a nationwide ruling on the merits.

Barrett’s questions about source, test, line, record, and disposition often appear procedural because they concern how a court should decide a case. Their content reaches beyond proceduralism, however, because they determine which texts, precedents, historical practices, and institutional powers can legitimately support a legal rule. The questions also explain why her preference for narrower decisions has limits. When enacted language clearly covers the conduct before the Court, as she concluded in Fischer, the same method can produce an expansive result.

Oral Argument as an Early Draft of the Separate Opinion

Barrett’s oral-argument questions frequently identify the distinction that later organizes her separate writing. The connection sometimes appears in repeated language, as when her question about the source of appellate authority in Tsarnaev became a concurrence devoted to that authority. More often, the question and opinion share an analytical structure: identify the source, define its scope, test its fit with the case, and select a disposition that reaches no further than the source permits.

The pattern extends beyond individual examples. Barrett had 303 indexed speaking turns in the argued cases reviewed for this analysis, including 244 substantive interventions across 67 cases. Her questions in cases that produced a separate opinion devoted 42.5% of substantive turns to the source, scope, factual fit, or permissible reach of the proposed decision. The corresponding share was 24.1% in a group of matched cases in which she did not write.

A paired comparison reaches a similar result. Each of Barrett’s 34 separate-writing cases was matched with a no-writing case based on term, issue area, ideological direction, unanimity, vote margin, source of legal authority, and argument date. Barrett had substantive participation in both cases in 25 of those pairs. The share of her questions devoted to warrant and reach was higher in the separate-writing case in 14 pairs, the same in four, and lower in seven. Across the 25 pairs, the average difference was 13.1%.

The individual cases show what the aggregate captures. In Trump v. United States, Barrett asked whether the public-authority defense could protect legitimate presidential action without creating categorical immunity and whether prosecutors could proceed against private conduct while leaving official conduct aside. Her partial concurrence and dissent later adopted a similarly segmented approach: protect exercises of power conclusively assigned to the president, permit prosecution of private conduct, and evaluate other official acts as the case developed.

In Gutierrez v. Saenz, Barrett asked whether the standing analysis should track the prosecutor or the state court and what evidence established the prosecutor’s reason for resisting DNA testing. Her separate writing later disaggregated the same causal chain, asking which government actor produced the injury and whether a judgment against the named defendant would redress it. In Bruen, her question about whether Heller’s account of history bound the Court became a concurrence addressing the legal weight of post-ratification practice. In Moody, her platform-specific hypotheticals became an argument for function-specific litigation.

There was at least conceptual continuity between Barrett’s questioning and later writing in 31 of the 34 separate-opinion cases. Nineteen showed the strongest form of connection, in which the language or proposed disposition at argument reappeared in the opinion. These results support treating oral argument as evidence of Barrett’s judicial priorities, although they cannot establish that the questioning caused the writing. Cases that generate separate opinions may contain more unresolved questions from the outset, and a justice who expects to write may use argument to test an emerging position.

The more defensible inference concerns anticipation. When Barrett repeatedly asks counsel to identify the source of authority, articulate a limiting principle, account for weaknesses in the record, or explain why a narrower route is unavailable, the same issue is more likely to structure a later concurrence or dissent. Those questions provide stronger evidence about the architecture of her reasoning than about the ideological direction of her eventual vote.

Calibration Does Not Always Mean Narrowness

Barrett’s attention to source, scope, and procedural fit can resemble judicial minimalism because it frequently leads her to reject a broad ruling. Calibration describes a relationship rather than a fixed preference for narrow decisions: the breadth she will accept depends on the strength and specificity of the legal warrant supporting it.

Her concurrence in Fulton v. Philadelphia illustrates the restraining side of that inquiry. Barrett expressed doubt about Employment Division v. Smith, which limits constitutional protection for religious practices burdened by generally applicable laws, but she declined to decide whether the Court should overrule it. The historical record was “more silent than supportive,” she wrote, and uncertainty about the doctrine that should replace Smith left “no reason to decide more.” The proposed doctrinal change was substantial, while the historical and precedential foundation for a replacement rule remained incomplete.

The same pattern appears when uncertainty arises from the record or procedural posture rather than history. Barrett resisted emergency intervention in Ohio v. EPA because the technical dispute had not received full appellate consideration. She supported dismissal in Moyle because changes in Idaho law and the federal government’s position had altered the controversy after the Court granted review. She rejected the sweeping injunction in Murthy because the evidence did not connect particular government officials, platforms, moderation decisions, and plaintiffs with the specificity required by standing doctrine. In each case, the requested decision would have reached beyond the proposition the available record could securely establish.

Barrett takes a different position when she finds the relevant authority sufficiently clear. In Fischer, she accepted broad statutory coverage because Congress had enacted language extending beyond the evidence-related conduct that prompted the law. Narrowing the statute to its motivating problem would have displaced the text with a judicial judgment about sensible limits.

Her majority opinion in Haaland v. Brackeen offers a constitutional example. Barrett described Congress’s power over Indian affairs as “muscular” because constitutional structure, historical practice, and an extensive line of precedent supported it. The resulting decision sustained substantial federal authority over state objections, demonstrating that her concern with institutional limits does not always favor the states or a smaller conception of national power.

Biden v. Nebraska similarly shows that contextual textualism can support a consequential result. Barrett described the major questions doctrine as a tool for identifying the text’s most natural interpretation in light of background legal conventions, constitutional structure, and common sense. Her analysis asked whether a reasonable reader would understand the HEROES Act to authorize mass cancellation of student debt. The scale of the asserted power raised the level of textual warrant required, and she concluded that the statute did not provide it.

This distinction helps explain why Barrett’s surprising votes do not point consistently toward moderation. She may reject a conservative result when it depends on an aggressive remedy or an artificially narrow reading of statutory language, while she may endorse a broad conservative result when text, history, structure, or precedent supplies a firm foundation. The operative question is how much legal weight the identified source can bear.

The map places selected propositions Barrett evaluated according to their breadth and the strength of the supporting authority she identified. She generally resisted broad propositions supported by disputed or incomplete authority and accepted broad propositions when she found the governing text, structure, history, or precedent sufficiently strong.

What the Pattern Explains

The familiar accounts of Barrett’s jurisprudence each describe part of her record. Her work with Scalia helps explain a commitment to enacted text, original meaning, and skepticism toward judicial reliance on legislative purpose. Her academic background helps explain her attention to standing, remedies, appellate role, and the relationship between procedural posture and the questions a court may properly decide. Her generally conservative voting record establishes substantive preferences that remain visible across most issue areas.

Those influences do not fully explain the variation within her decisions. Textualism alone does not explain why Barrett repeatedly writes about the source of judicial power, the adequacy of a record, or the availability of a narrower procedural route. Proceduralism does not capture her calibration of historical evidence in Bruen, Samia, and Vidal. General conservatism does not explain her statutory position in Fischer, her dissent in Ohio, or her mixed coalitions in bankruptcy, administrative law, and commercial cases.

Source-sensitive decisional calibration connects those tendencies because it describes how Barrett moves from an interpretive premise to a judicial result. Text, history, precedent, institutional authority, and the record do not merely point toward an outcome; they establish how far the Court may extend its reasoning or remedy. A strong and specific source can support a consequential decision, while ambiguity, historical silence, an incomplete record, or an ill-suited procedural vehicle can justify a narrower result or separate opinion.

The framework also places limits on claims about her personal motivations. Barrett’s opinions and oral-argument questions provide no reliable way to measure the effect of religious belief, and attributing public-law decisions to that background would require evidence the judicial record does not supply. The observable evidence instead shows recurring legal questions, issue-conditioned coalitions, and repeated continuity between argument and writing.

The pattern is structured, although the analysis cannot reduce every vote to a single variable. Supreme Court Database categories combine disputes that differ substantially, ideological-direction codes fit some cases better than others, and several issue areas contain too few nonunanimous decisions for firm conclusions. The oral-argument comparison establishes association rather than causation because cases that produce separate opinions may present more unresolved questions from the beginning. These limits make the thesis narrower and more defensible: calibration explains the scope and architecture of Barrett’s reasoning more reliably than it predicts every bottom-line vote.

What to Watch in the Cases Ahead

Barrett’s future questions may provide an early indication of where she sees a source-to-reach problem. Repeated demands for the source of authority, the governing test, a limiting principle, evidence connecting the rule to the record, or an explanation of why a narrower path is unavailable can identify the issue most likely to organize a later concurrence or dissent.

Those signals should be interpreted differently from conventional measures of ideological alignment. A question about statutory breadth does not necessarily suggest that Barrett will favor the narrower interpretation, as Fischer demonstrates. A question about institutional restraint does not necessarily favor state authority, as Haaland demonstrates. The inquiry concerns whether the asserted legal source can support the proposed reach, and the answer may produce either a broad or limited result.

Issue area provides additional context. Judicial-power cases are likely to keep Barrett close to Kavanaugh and focused on standing, redressability, and remedial authority. First Amendment and historically grounded constitutional cases may continue to place her nearer Gorsuch while prompting separate methodological qualifications. Technical statutory and regulatory disputes remain the strongest candidates for unusual coalitions because textual boundaries, remedial provisions, and record-specific questions can displace the Court’s more familiar alignments.

The contrast between Ohio and Fischer therefore supplies more than an opening anecdote. Barrett resisted broad emergency action when, according to her position, the record and posture could not sustain it, then accepted broad statutory consequences when she believed the enacted language required them. Her jurisprudence becomes more coherent when those decisions are read as two parts of the same judicial instinct: identify the governing authority, determine what it can bear, and refuse to make either the source or the decision do more than the law permits.

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Amicus briefs occupy an unusual place in appellate litigation. They are filed by outsiders, yet they can supply technical knowledge, historical material, institutional perspective, or arguments the parties have not developed. Public discussion of the practice remains centered on the Supreme Court. Far less is known about the federal courts of appeals, even though those courts resolve tens of thousands of matters and frequently provide the last word in nationally significant disputes.

This post uses a new dataset of 2024 federal appellate decisions provides a systematic account of that practice across the 12 regional circuits. It identifies 576 case families with proven amicus participation and links 1,521 confirmed briefs to 460 of those families. The other 116 families contain reliable evidence that amici participated, but individual brief records could not be reconstructed. The data therefore supply a comprehensive family-level universe and a conservative lower-bound account of briefs, filers, and coalitions.

The data also permit a closer look at what happens after a brief is filed. A broad text screen flagged 176 families for possible engagement and 95 for a possible brief citation. Those screens deliberately favored recall and included false positives. A completed manual audit of the 21 strongest exact-link candidates found substantive engagement in 18 cases, mere acknowledgement in two, and a reference to a brief from a prior appeal in one. The results show why filing, citation, and influence must remain separate concepts.

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In April 2005, less than three months before Justice Sandra Day O’Connor announced her retirement, John Roberts wrote separately in a federal labor case that his court had already resolved. The D.C. Circuit remanded a union’s challenge to the Federal Labor Relations Authority, and Roberts joined that disposition. He nevertheless added a concurrence emphasizing the government’s authority to protect the security of its operations and explaining how the agency might still reject the union’s proposal on remand.

Six weeks later, Roberts wrote separately again. In AFL-CIO v. Chao, he would have upheld more of a financial-reporting rule issued by Labor Secretary Elaine Chao than the rest of the panel was prepared to sustain. O’Connor announced her retirement on July 1. President George W. Bush selected Roberts for her seat on July 19.

Those opinions do not establish that Roberts was seeking a promotion. Judges write separately for many reasons, and a judicial opinion provides little evidence of its author’s private motives. They do illustrate a feature of lower-court judging that receives less attention during Supreme Court nominations. An appellate judge’s record consists of more than which parties won. Authored opinions give judges opportunities to emphasize particular methods of interpretation, describe the limits of governmental power, stake out positions on contested doctrine, or explain a legal principle more broadly than the disposition alone requires.

This type of behavior was documented and analyzed by Ryan Owens and Ryan Black in a paper from 2015. Larsen and Devins recently took this in a different direction by analyzing appellate judicial opinions to reveal how those judges utilize provocative, media-friendly solo opinions to build a personal celebrity brand.

For this article I examined the pre-nomination writings of the current nine Supreme Court justices to see whether those signals changed as a potential vacancy approached. The clearest comparison uses five justices for whom the underlying opinion coverage is strongest: Thomas, Roberts, Sotomayor, Kavanaugh, and Barrett. Across those judges, 7 of 21 authored opinions in the period 91 to 180 days before the relevant vacancy contained a clear jurisprudential signal aligned with the political coalition that later selected the judge. In the final 90 days, the figure was 18 of 34.

The direction of the case results moved differently. Selector-aligned outcomes accounted for 16 of the 21 earlier opinions, or 76%. They accounted for 23 of 34 opinions, or 68%, during the final 90 days.

The distinction suggests a narrower form of judicial auditioning worth examining: greater visibility of jurisprudential commitments as a potential Supreme Court opening draws closer.

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Measuring a Jurisprudential Signal

Any attempt to measure judicial auditioning runs immediately into a classification problem. A Republican president and a Democratic president are unlikely to value the same signals, and the ideological direction of a ruling depends on the legal issue involved. A decision favoring a criminal defendant, for example, carries different ideological implications from a decision favoring a religious-liberty claimant. Administrative-law cases create an additional complication because skepticism of an agency may point in different political directions depending on the regulation, the administration, and the reasoning employed.

Th coding of opinions was along separate dimensions. The first is the direction of the result: whether the disposition favored the position ordinarily associated with the political coalition that ultimately selected the judge. The coding rules depend on the issue. Greater protection for religious exercise or Second Amendment rights generally points in a Republican direction; broader voting access or greater protection for discrimination plaintiffs generally points in a Democratic direction. First Amendment cases are coded according to the particular dispute rather than a general party rule.

The second dimension is the expressive content of the opinion. Here the question is what the judge chose to communicate through the reasoning. The coding captures features such as an unusually clear commitment to textualism or originalism, structural limits on government power, deference to executive authority, skepticism of administrative agencies, expansive protection of an individual right, or another doctrinal position with an identifiable relationship to the selecting coalition. The strength of the signal is coded separately from its direction.

That separation allows an opinion’s result and its jurisprudential signal to point in different directions. Roberts’s concurrence in National Treasury Employees Union v. FLRA is an example. The union obtained a remand, a result coded in the union’s direction. Roberts’s separate reasoning emphasized management and security authority and preserved a route for the agency to reject the union’s proposal. The disposition and the additional signal therefore receive different codes.

The rules work in the other direction as well. Shortly before his Supreme Court nomination, Kavanaugh wrote separately in Ortiz-Diaz v. HUD Office of Inspector General to advocate greater protection for an employee pursuing a race-discrimination claim. Under the same issue-specific rules, that writing counts against alignment with a Republican selector. Barrett’s opinion denying qualified immunity to a detective in Rainsberger v. Benner likewise receives a plaintiff-protective code. A separate opinion receives no favorable treatment simply because the eventual nominee chose to write it.

The final dataset contains 273 authored opinions. Each opinion has a case-specific issue classification, outcome code, expressive-tenor code, signal-strength measure, coding rationale, and source. As a final check, the substantive coding rules were audited without the event-time variables that identify how close an opinion fell to a Supreme Court vacancy. All of the clear selector-aligned signals in the final 90-day period were then checked individually against the underlying opinions or primary case sources.

That coding provides the basis for comparing changes in judicial outcomes with changes in what eventual nominees chose to emphasize in their written work.

The Pattern in the Opinions

The comparison closest to the vacancy covers 55 opinions written by the five justices with the strongest underlying coverage. Twenty-one were issued between 91 and 180 days before the relevant vacancy. Thirty-four came during the final 90 days.

The change in jurisprudential signaling is fairly pronounced. Seven of the 21 opinions in the earlier period, 33%, contained a clear signal aligned with the political coalition that later selected the judge. During the final 90 days, 18 of 34 opinions, or 53%, did. The number of especially strong signals also increased, from two in the earlier period to seven in the final 90 days.

Case outcomes followed a different pattern. Sixteen of the 21 earlier decisions, 76%, produced results aligned with the eventual selector. During the final 90 days, 23 of 34 did so, or 68%. The judges therefore became somewhat less likely to reach a selector-aligned result during the same period in which their written reasoning became more likely to contain an aligned jurisprudential signal.

The difference between those measures is central to what the data capture. A judge can reach an unremarkable or even politically unfavorable result while using the opinion to articulate a position on statutory interpretation, executive authority, constitutional structure, individual rights, or another issue of interest to a future administration. A judge can also reach a politically favorable result through routine application of precedent without saying much about a broader judicial philosophy. Those are different observations in the coding.

The pattern also does not depend on treating every concurrence or dissent as a signal. Separate writings were coded according to their substance. Some moved toward the eventual selector, some moved away from it, and others carried no meaningful ideological signal. Majority opinions could qualify as well when their reasoning made a sufficiently clear jurisprudential commitment.

With samples this small, the percentages should be read descriptively. They nevertheless provide a useful answer to the first question posed by the data. The observable change near a vacancy appears more clearly in the reasoning judges put into the public record than in the ideological direction of the judgments they entered.

Roberts and the Spring of 2005

Roberts provides the clearest case for seeing how the distinction operates at the level of individual opinions. His D.C. Circuit record is unusually close to a complete authored-opinion universe. Contemporary materials submitted to the Senate identified 49 cases during his tenure in which Roberts wrote an opinion. The dataset accounts for 47 of those before Bush publicly selected him on July 19, 2005, and two more issued after his selection. Six of the 47 pre-selection writings came during the 90 days before O’Connor announced her retirement (his first nomination was for the associate position when O’Connor announced retirement and was only later changed to the nomination to Chief after Rehnquist passed).

Three of those six contain a clear selector-aligned signal under the coding rules. Their significance lies less in the number than in the relationship between the result and Roberts’s own contribution.

In National Treasury Employees Union v. FLRA, the court sent a dispute involving Customs Service employees back to the Federal Labor Relations Authority. Roberts joined that disposition, which favored the union’s effort to obtain further review. He wrote separately, however, to emphasize the agency’s ability to invoke its statutory authority over internal-security practices. His concurrence also explained why the FLRA could again reject the union proposal if it supplied an adequate explanation. The union-favorable disposition accordingly receives a different code from Roberts’s more management- and agency-protective separate reasoning.

The contrast was sharper in AFL-CIO v. Chao, decided on June 3. The case concerned Labor Department rules requiring unions to provide more detailed financial disclosures. Roberts agreed with portions of the court’s ruling but dissented from its decision to invalidate part of Secretary Elaine Chao’s rule. His separate opinion relied heavily on the statutory language and would have sustained more of the position taken by a cabinet official in the administration that was then considering candidates for the Supreme Court.

Other opinions from the same 90-day period keep the example from becoming too tidy. In Amoco Production Co. v. Watson, Roberts upheld the Interior Department’s interpretation of federal royalty requirements. The regulatory result does not fit a conventional deregulatory conservative outcome, although the opinion contains a discernible text- and structure-based approach to statutory interpretation. Outlaw v. Airtech Air Conditioning & Heating, Inc., a private commercial dispute decided a week before O’Connor’s announcement, offers little meaningful ideological content at all.

Roberts’s record during these months therefore contains several kinds of observations: aligned results, unaligned results, strong jurisprudential signals, and opinions with almost no usable political signal. The two separate writings are especially revealing because Roberts chose to add reasoning beyond what was necessary to join the court’s disposition. Both appeared during the final three months before the vacancy, and both made positions relevant to the Bush administration’s legal agenda more visible in his public record.

Six opinions cannot establish what Roberts intended. They do show why looking only at wins and losses would miss much of the potentially nomination-relevant information contained in an appellate judge’s work.

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The Pattern Varies by Judge

The pooled numbers conceal substantial differences among the five judges (now justices).

Kavanaugh shows the largest change. Only one of his three opinions from 91 to 180 days before the vacancy contained a clear selector-aligned jurisprudential signal. All six of his opinions in the final 90 days did. Roberts moved from one of six to three of six, while Thomas moved from none of three to two of five.

Barrett’s change was smaller. Two of her five opinions in the earlier period contained a clear aligned signal, compared with seven of 16 in the final 90 days. She also wrote considerably more opinions during the later period, making her record useful for seeing variation within the same window. Several opinions contained strong signals, while others pointed in the opposite political direction or carried little ideological content.

Sotomayor provides the clearest counterpoint. Three of her four opinions in the earlier period contained a signal aligned with a Democratic selector. Her final 90-day period contains only one authored opinion in the dataset, United States v. Abdulle, and that decision affirmed a drug-conspiracy conviction. It therefore runs against the Democratic-selector direction. With one observation, the final period says little about a change in Sotomayor’s behavior, but it prevents the pooled result from being read as a pattern that appears mechanically for every eventual nominee.

The differences also caution against treating the percentages as individual measures of ambition. Appellate judges do not control the cases assigned to their panels, and they have varying opportunities to write opinions that reveal broader commitments. The relevant pattern is whether those opportunities, taken together, produced a greater concentration of selector-aligned signals as the vacancy approached.

What the Signals Look Like Across Judges

Kavanaugh’s final months on the D.C. Circuit provide some of the clearest examples. In May 2018, he wrote for the court in Santa Fe Discount Cruise Parking v. Federal Maritime Commission, vacating an agency decision because the commission had failed to justify its differential treatment of parking operators. The coding treats the opinion as a visible agency-skeptical signal.

On June 15, less than two weeks before Justice Anthony Kennedy announced his retirement, Kavanaugh issued two dissents. In Island Architectural Woodwork v. NLRB, he rejected the National Labor Relations Board’s alter-ego determination and argued that the agency’s conclusion was unreasonable. In United States v. Brown, he objected to defendant-favorable sentencing rulings and defended broader judicial consideration of a defendant’s actual conduct at sentencing. Both are classified as particularly strong selector-aligned signals, although they arise in different areas of law.

Barrett’s final 90 days show a broader mix. Her concurrence in United States v. Wilson defended the constitutionality of stopping a fleeing suspect and received a strong aligned code. Her dissent in United States v. Uriarte, issued three days before the vacancy created by Justice Ruth Bader Ginsburg’s death, took a restrictive view of the First Step Act’s application to a defendant awaiting resentencing. Other opinions during the same period favored law enforcement, employers, or arbitration.

The same stretch also contains decisions that resist a simple political characterization. Barrett granted relief to an immigrant in Morales v. Barr and ordered a new trial for a pretrial detainee in Pittman v. Madison County. An opinion sustaining the IRS against a corporate taxpayer was coded against the expected Republican direction on the outcome and as neutral in its expressive signal. Those decisions remain part of the denominator.

Thomas’s record offers another version of the pattern. In Cross-Sound Ferry Services v. ICC, he wrote separately to argue that the challengers lacked Article III standing and that the court therefore lacked authority to reach the merits. Shortly afterward, in Citizens Against Burlington v. Busey, he rejected most of an environmental challenge to airport expansion while emphasizing the limited role of courts reviewing agency policy judgments. Neither signal depends simply on which litigant prevailed. The coding turns instead on the broader principles Thomas chose to emphasize: limits on judicial power in one case and judicial restraint in reviewing administrative decisionmaking in the other.

Across the judges, the content varies with the cases before them. The recurring feature is greater visibility of jurisprudential positions that would have been recognizable to the political and legal officials evaluating potential nominees.

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Limits of the Evidence

The data cannot identify a judge’s motive for writing an opinion or choosing particular reasoning. Case assignment also constrains the opportunities available to any judge during a 90-day period, and the number of opinions for several justices is small. The analysis is limited to authored opinions, leaving silent votes outside the dataset.

The coding presents another source of judgment. Each opinion was classified under issue-specific rules, with the result separated from the content of the judge’s reasoning, and the final audit was conducted without the event-time variables. The classifications nevertheless require legal judgments about the direction and strength of particular signals. The findings are best understood as evidence of a pattern in the public records of eventual nominees, rather than evidence of what any judge privately intended.

The figure above traces every authored opinion during the 180 days before the relevant vacancy. Each point represents one opinion. Color identifies selector-aligned, selector-opposed, or neutral expressive content; shape distinguishes lead/majority opinions from separate writings. A vertical line marks 90 days before the vacancy. Label a small number of the opinions discussed in the text.

What to Watch Before the Next Vacancy

The next useful test of the pattern can begin before anyone knows whether there will be a vacancy.

Supreme Court retirement speculation already produces intensive attention to the justices who might leave and to the lawyers who might replace them. Justice Samuel Alito has been the subject of such speculation recently, although reporting in April indicated that he planned to remain on the Court through at least 2026, and a June report announcing his retirement was quickly retracted. Similar speculation will eventually surround another justice, whether or not a retirement follows.

At that point, attention should extend beyond the names appearing on administration shortlists. The appellate judges most plausibly under consideration will continue deciding cases in public. Their opinions can be followed as they are issued.

Several features would be worth watching.

A concurrence or dissent deserves attention when a judge could simply have joined the disposition but instead uses a separate writing to address constitutional structure, executive power, administrative authority, religious liberty, the Second Amendment, statutory interpretation, or another issue important to the appointing coalition. Majority opinions can provide the same information when they adopt a particularly broad rule or make an interpretive commitment unusually explicit.

The comparison should also include opinions pointing the other way. An expected nominee who writes an expansive civil-rights opinion, rules against executive power, rejects a government immunity claim, or otherwise takes a position unattractive to the relevant administration provides useful evidence. The question is whether the balance of the judge’s written record changes, rather than whether individual opinions can be placed on a nomination narrative after the fact.

Timing should be recorded as well. An opinion issued a year before a possible vacancy carries different information for this inquiry than a voluntary concurrence issued while retirement rumors are circulating and a White House is assembling a shortlist.

That creates a straightforward opportunity the next time vacancy speculation becomes serious: identify the plausible appellate candidates, establish their prior written records, and follow their new opinions prospectively. If the pattern found here appears again, the signs may be visible before the nomination is.

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A lawyer discovers that a filed brief contains authorities that do not exist, quotations that do not appear in the cited opinions, or legal propositions generated by an artificial-intelligence tool rather than verified against primary sources. At that point, the familiar warning to “check everything AI produces” is no longer especially useful. The filing is already on the docket. Opposing counsel may already have found the problem. The lawyer’s immediate decisions—whether to investigate, disclose, correct, apologize, or deflect responsibility—may determine whether the incident ends with an admonishment or escalates into monetary sanctions, disqualification, suspension, or disciplinary referral.

This article examines what courts have done after lawyers learned, or should have learned, that AI-related inaccuracies had entered the record. The study began with Damien Charlotin’s publicly available AI Hallucination Cases Database and independently reviewed 100 of the most recent cases in the dataset that were resolved U.S. matters involving lawyers. A stricter analytical sample included cases with a meaningful AI connection, a final judicial outcome, and enough information to evaluate counsel’s response after discovery.

The results point to a coherent and practical distinction. The seriousness of the original error remains central: nearly every high-materiality incident produced a serious consequence. But post-discovery conduct also mattered. Serious consequences were substantially more common when lawyers offered misleading explanations, shifted blame, repeated the misconduct, or introduced additional inaccuracies after receiving notice. Prompt admission, by contrast, was associated with a markedly lower rate of serious consequences.

Candor cannot erase significant harm to a client or the judicial process. It can, however, prevent an already serious mistake from becoming a separate problem of professional responsibility.

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In Sripetch v. Securities and Exchange Commission, decided June 4, 2026, the Supreme Court identified an argument offered by the U.S. Chamber of Commerce concerning the boundary between equitable disgorgement and a punitive sanction. The Chamber’s brief invoked the traditional principle that disgorgement is available only when a defendant has violated a victim’s legally protected rights. The Court placed that argument alongside the parties’ competing theories and the governing equitable authorities.

That passage captures one form of amicus influence: a court incorporates the organization’s legal theory into its analysis of the question presented. Other briefs perform different functions. They provide historical evidence, assemble empirical studies, explain professional practice, forecast the consequences of a proposed rule, or supply the framework for a concurrence or dissent. Some are cited only in the case for which they were written. Others reappear years later as authorities in unrelated litigation.

This article examines decisions issued since January 1, 2000, in which a court substantively discussed a brief filed by one of four major repeat-player amici: the American Civil Liberties Union, the American Bar Association, the NAACP or NAACP Legal Defense and Educational Fund, and the U.S. Chamber of Commerce. The cases span the Supreme Court, the federal courts of appeals and district courts, and state appellate courts.

The comparison reveals four distinct patterns. The Chamber’s cited briefs were used primarily in the cases in which they were filed and frequently appeared in controlling opinions. ABA briefs had a much longer afterlife, with courts often returning to submissions from earlier litigation. The ACLU had the largest Supreme Court presence, although many citations appeared in concurrences and dissents. NAACP-LDF briefs were especially prominent in state courts and separate opinions and frequently supplied historical, statistical, and social-context evidence.

These differences matter because a citation count alone treats every form of judicial attention as equivalent. The data instead suggest that repeat-player amici occupy different institutional roles. Some intervene directly in the development of controlling doctrine. Some build the factual and historical record. Some frame disputes for future courts. Some produce briefs that acquire authority long after the original case has ended.

The data

The dataset includes decisions issued from January 1, 2000, through July 2026. A decision was included only when a judge substantively cited, quoted, discussed, credited, distinguished, or rejected an amicus brief filed by one of the four organizations. It looks across state and federal courts including federal district courts. The only excluded set are state trial courts which do not have a central repository for orders.

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Justice Amy Coney Barrett recently verbally resisted a label that has followed several members of the current Supreme Court. Asked whether her occasional breaks with the Court’s conservative majority made her a swing vote, Barrett said the term made her sound “sort of flighty.” She preferred “independent, or just following the law.” Her answer captured a recurring problem in statistical accounts of judging: voting patterns are observable, while motives usually are not.

The older idea of a swing justice referred to a durable position near the Court’s ideological center. Justices Lewis Powell, Sandra Day O’Connor, and Anthony Kennedy often supplied the vote that allowed one side to form a majority. Scholar Neal Devins has argued that the post-Kennedy Court lacks a comparable figure because its six-member conservative majority is more cohesive and more closely tied to partisan appointment politics than earlier Courts.

The 2025 term offers support for that account. Chief Justice John Roberts and Justice Brett Kavanaugh each voted with the majority in 95% of cases, followed by Barrett at 92%. About one-fifth of the term’s decisions divided 6–3 along the conventional ideological line. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented together in nearly one-quarter of the Court’s cases.

The closest decisions showed a more fluid structure. In Bowe v. United States, Pitchford v. Cain, and Trump v. Cook, Roberts and Kavanaugh supplied the two conservative votes needed to join the three liberals in 5–4 majorities. Barrett and Kavanaugh performed the same role in Hamm v. Smith, while Barrett and Roberts joined the liberals in Watson v. RNC. In T.M. v. University of Maryland Medical System Corp., Jackson and Sotomayor moved in the other direction, joining three conservatives to form the majority.

Dissenting coalitions revealed another form of crossover. In USPS v. Konan, Justice Neil Gorsuch joined all three liberal justices in dissent from a five-justice conservative majority. In Monsanto Co. v. Durnell, Gorsuch and Jackson formed the full two-justice dissent in a 7–2 case. Those alignments continued relationships visible in earlier cases such as Arizona v. Navajo Nation, Campos-Chaves v. Garland, Bufkin v. Collins, and Delligatti v. United States.

The current Court therefore has several centers of cross-bloc influence. Roberts most often builds narrow majorities. Kavanaugh frequently supplies the accompanying vote. Gorsuch is the most consistent bridge in dissent. Jackson has cast several consequential crossover votes while remaining closely aligned with the liberal bloc across the broader docket. Barrett’s record combines a smaller number of pivotal majority votes with several notable dissents alongside liberal colleagues.

This article measures those roles separately. The principal comparison covers the 2022 through 2025 terms, when all nine current justices served together. That common period gives each justice the same Court composition and the same set of close-case opportunities. The analysis also examines recurring pairs and groups and tracks changes over time.

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Measuring crossover behavior

A basic agreement rate cannot distinguish among different forms of cross-bloc voting. Two justices may agree frequently because both join broad majorities. A justice may join an 8–1 decision without affecting the result. Another may provide the fifth vote in a 5–4 case. The analysis therefore separates outcome leverage from dissent crossover.

Outcome leverage

Outcome leverage counts cross-bloc votes needed to create a minimum-winning majority (five majority votes). A single conservative joining four liberals receives one unit of pivotal credit, as does a single liberal joining four conservatives. When three liberals join two conservatives, both conservative votes are required, so each receives one-half unit. The allocation gives one total unit of swing credit to each case.

The 2025 term supplies several examples. Roberts and Kavanaugh each receive one-half unit in Bowe, Pitchford, and Cook. Barrett and Kavanaugh receive the corresponding credit in Hamm. Barrett and Roberts receive it in Watson. Jackson and Sotomayor each receive one-half unit in T.M.

The measure is expressed as allocated pivotal credit per 100 minimum-winning cases in which the justice participated. Reporting the denominator is essential. Jackson’s rate rests on 27 common-period opportunities. Roberts has the same denominator in the common-period comparison, while his career record spans many more cases.

Dissent crossover

The dissent measure counts a justice as a directional crossover when members of the opposite ideological bloc outnumber members of the justice’s own bloc within the dissent. Gorsuch joining Sotomayor, Kagan, and Jackson is the clearest example. A one-liberal, one-conservative dissent is recorded separately as a paired cross-bloc dissent because neither bloc leads the coalition.

Dissent crossover does not affect the judgment. Its value lies in recurrence and composition. A single unusual dissent may reflect the facts of one case. Repeated alliances across issues provide stronger evidence of a continuing jurisprudential connection.

The principal index combines the two measures:

Crossover Index = 0.65(Outcome Leverage) + 0.35(Directional Dissent Crossover)

The heavier majority weight reflects the institutional significance of creating a judgment. The dissent component preserves information about recurring cross-bloc alliances. Broader mixed-coalition participation remains separate because it can overstate individual swing behavior on a Court divided six to three.

Concurrences are coded according to the judgment for majority formation. A justice who concurs only in the judgment still supplies a vote for the disposition, although the justice may not join the controlling rationale. The analysis therefore speaks most confidently about judgment coalitions.

The current Court’s crossover rankings

The common-period rankings identify two clear leaders. Roberts ranks first through repeated participation in minimum-winning majorities. Gorsuch ranks second through a combination of majority leverage and frequent cross-bloc dissents.

Roberts’ score comes entirely from the majority side. His six units of allocated credit represent twelve pivotal appearances, because most involved two conservative justices joining the three liberals. Gorsuch’s profile is more balanced: five half-credit majority appearances and eight opposite-bloc-led dissents. Kavanaugh’s score is concentrated in majority formation, with no directional crossover dissent during the period.

Barrett’s fourth-place result rests on a smaller sample. Three of her twenty dissents were directional crossovers, producing a 15% rate. Gorsuch recorded more than twice as many qualifying dissents. Jackson ranks fifth after broader mixed-majority participation is removed from the main index. Her three units of pivotal credit arose in four cases, including two in which she was the only liberal member of a 5–4 majority. Only two of her sixty-three dissents were led by conservative colleagues.

Jackson’s result illustrates the difference between a high rate and a broad swing profile. A few distinctive cases have given her substantial outcome leverage over a short period. Roberts has participated in twice as much allocated pivotal credit during the same four terms and has built the same type of coalition repeatedly.

Sotomayor’s score also comes mainly from majority formation. Her pivotal cases include National Pork Producers Council v. Ross, Mallory, Feliciano v. Department of Transportation, and T.M. Kagan’s lower score reflects fewer minimum-winning crossover appearances despite her frequent agreement with Roberts in broader coalitions. Thomas and Alito occupy the bottom of the ranking because neither cast a pivotal crossover vote during the common period; Thomas recorded one directional crossover dissent and Alito recorded none.

As a robustness check, I also ran the index with reduced weight to coalition-enabling 6–3 decisions. Credit was awarded only when the majority could not reach five votes without support from the opposite ideological bloc, and the case-level credit is divided among the justices who supplied that cross-bloc support. In the revised specification, 5–4 outcome leverage receives 55% of the index, 6–3 coalition enabling receives 15%, and dissent crossover receives 30%. Adding the 6–3 component changes the denominator to 60 cases yet it leaves the ordering unchanged, though it narrows some gaps—especially among Gorsuch, Kavanaugh, and Barrett—and changes the magnitude of the scores.

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The majority makers

Roberts has been the current Court’s central majority builder. He participated in twelve cross-bloc 5–4 majorities from OT2022 through OT2025. Seven paired him with Kavanaugh, four with Gorsuch, and one with Barrett. Each majority contained the three liberal justices and two conservatives.

The Roberts-Kavanaugh pairing appeared in Allen v. Milligan, where Roberts wrote for a majority that included Sotomayor, Kagan, Jackson, and Kavanaugh in a Voting Rights Act dispute. The same five justices joined in Cruz v. Arizona, which concerned Arizona’s application of a change in capital-sentencing law. In Williams v. Reed, Kavanaugh wrote for Roberts and the three liberals in holding that Alabama could not use administrative-exhaustion rules to block a federal civil-rights challenge over delayed unemployment benefits.

The 2025 term concentrated the pattern. In Bowe, Sotomayor wrote for Roberts, Kavanaugh, Kagan, and Jackson in a dispute over successive federal postconviction motions. In Pitchford, Kavanaugh wrote for Roberts and the three liberals in a capital case involving the prosecution’s strikes of Black prospective jurors. Roberts and Kavanaugh formed the same five-justice coalition in Cook, a dispute over the attempted removal of Federal Reserve Governor Lisa Cook.

Roberts’ other 2025 crossover came with Barrett in Watson, where Barrett wrote for Roberts and the three liberals in a challenge to Mississippi’s treatment of absentee ballots received after election day. Barrett and Kavanaugh supplied the two conservative votes in Hamm, an intellectual-disability case arising from Alabama’s death-penalty system.

Kavanaugh’s role is closely tied to Roberts. Seven of his eight common-period pivotal appearances also included the Chief Justice. His influence lies in producing a fifth vote for Roberts-centered coalitions. Gorsuch has been Roberts’ secondary partner, joining him and the three liberals in Becerra v. San Carlos Apache Tribe, Velazquez v. Bondi, Hewitt v. United States, and Perttu v. Richards.

Jackson’s pivotal majorities follow a different pattern. In Bittner v. United States, she was the only liberal in a majority with Roberts, Alito, Gorsuch, and Kavanaugh over penalties for nonwillful foreign-account reporting violations. In Harrington v. Purdue Pharma, she was the only liberal in a majority rejecting nonconsensual releases for members of the Sackler family. In Mallory v. Norfolk Southern Railway Co. and T.M., Jackson and Sotomayor joined three conservatives.

Those four decisions explain Jackson’s outcome-leverage score. They also show why her ranking should not be interpreted as evidence of general centrism. Across most divided cases, her votes remain closely aligned with Sotomayor and Kagan. Roberts’ record is more continuous: he repeatedly forms a four-justice core with the liberals and draws a fifth vote from Kavanaugh, Gorsuch, or Barrett.

The dissent bridge

Gorsuch’s most distinctive crossover behavior appears in dissent. He joined an opposite-bloc-led dissent in eight of his forty-six dissents during the common period, a rate of 17.4%.

The clearest recurring group consists of Gorsuch and the three liberals. In Arizona v. Navajo Nation, Gorsuch wrote for Sotomayor, Kagan, and Jackson in arguing that the federal government’s treaty obligations required greater attention to the Navajo Nation’s water needs. The same four justices dissented in Campos-Chaves v. Garland, where Jackson argued that immigrants ordered removed in absentia should be able to seek rescission when the government failed to provide statutorily required notice. They aligned again in Riley v. Bondi, subject to Gorsuch’s partial join, and in USPS v. Konan, where Sotomayor argued that the Federal Tort Claims Act’s postal exception did not cover intentional withholding of mail.

Gorsuch and Jackson also formed the full two-justice dissent in Bufkin v. Collins, Delligatti v. United States, and Monsanto. The cases involved veterans’ benefits, the definition of a crime of violence, and federal pesticide preemption. Their recurrence across unrelated subjects makes the pairing notable even though it represents a small share of both justices’ total votes.

Barrett has a smaller cross-bloc dissent record. She joined or wrote for liberal-led dissents in Fischer v. United States, Ohio v. EPA, and City and County of San Francisco v. EPA. The latter two involved environmental regulation and administrative procedure. Three qualifying cases yield a high percentage because Barrett had only twenty dissents during the common period. The count should remain beside the rate.

Jackson’s dissent record points in the opposite direction from her majority score. She dissented sixty-three times during the four terms, and only two dissents were led by conservative colleagues. Her shared dissents with Gorsuch matter for the coalition analysis, while most of her dissenting votes remain within the liberal bloc.

Recurring pairs, trios, and foursomes

The coalition data reveal two networks. Roberts sits at the center of cross-bloc majorities. Gorsuch occupies a comparable position in dissent.

Roberts and Kagan are the broadest cross-bloc pair. They voted on the same side in seventy-five of 131 nonunanimous cases during the common period, including seventy-one shared majorities and fifteen of the twenty-seven 5–4 decisions. Their agreement appears in broad coalitions such as United States v. Rahimi and Murthy v. Missouri and in narrow Roberts-centered majorities such as Allen, Bowe, and Cook.

Roberts and Kavanaugh are the leading pivotal pair. They supplied the two conservative crossover votes in seven of the fourteen liberal-led 5–4 majorities. The cases included Allen, Cruz, Texas v. New Mexico and Colorado, Williams, Bowe, Pitchford, and Cook. Roberts and Gorsuch supplied the two votes in four additional cases.

Gorsuch and Jackson are the leading current cross-bloc dissent pair, with nine shared dissents during the common period. Gorsuch, Kagan, and Sotomayor dissented together six times, continuing a relationship that predates Jackson’s arrival.

Two foursomes summarize the broader structure. Roberts and the three liberals appeared together in the majority in fifty-three nonunanimous cases and twelve of the twenty-seven 5–4 decisions. Gorsuch and the three liberals formed the clearest recurring mixed dissent group in Arizona, Campos-Chaves, Riley, and Konan. Barrett and the three liberals formed a smaller, more issue-specific dissent group in Ohio v. EPA and City and County of San Francisco.

These relationships explain why a single agreement statistic is insufficient. Roberts-Kagan captures broad shared voting. Roberts-Kavanaugh captures joint pivotality. Gorsuch-Jackson captures cross-bloc dissent. Each pairing reflects a different form of influence. The trio and foursome results add another layer: Roberts repeatedly begins with the liberal bloc and searches for one more conservative vote, while Gorsuch repeatedly joins a liberal dissent that is already one vote short of changing the judgment.

Coalition drift

Term-by-term scores show how quickly a justice’s apparent role can change. The analysis uses three-term rolling windows to reduce the effect of a few unusual cases.

Roberts’ increase comes primarily from majority formation. His later window includes five units of allocated pivotal credit across twenty minimum-winning cases, compared with 4.5 units across twenty-seven cases in the earlier window. Barrett’s increase combines the dissents in Fischer, Ohio v. EPA, and City and County of San Francisco with pivotal votes in Hamm and Watson. Her change is large in percentage terms because the underlying dissent count remains small. Gorsuch’s score remains high because his dissent alliances persist while he also participates in some Roberts-centered majorities. Kavanaugh’s profile remains heavily majority-driven; his four pivotal appearances in the 2025 term offset quieter results in the two preceding terms.

Thomas recorded no qualifying pivotal vote or directional crossover dissent from OT2023 through OT2025. Alito recorded none in either rolling window. Jackson’s available series is too short for a firm trend. Her score declined from the OT2022–OT2024 window to OT2023–OT2025 because three of her four pivotal majority appearances occurred during her first two terms.

These measures describe coalition drift. They can reflect changes in a justice’s approach, changes in the docket, or movement by other justices. The vote data do not identify one cause.

Interpretation and limits

The index depends on several choices. The current Court’s six-to-three ideological division provides a transparent starting point, though the members of each bloc are not interchangeable. Historical analysis would require a more flexible treatment of figures such as O’Connor and Kennedy. Term-specific Judicial Common Space scores could provide a useful sensitivity check.

The pivotal-credit rule also allocates equal shares to jointly necessary justices. It does not identify who persuaded whom or which vote arrived last. Dissent crossover is measured separately from paired or balanced mixed dissents. Fractured opinions create another limitation because a justice may support the judgment without joining the controlling rationale.

Sample size remains important. Barrett’s dissent percentage rests on three cases. Jackson’s outcome-leverage rate rests on four pivotal majorities. Gorsuch’s dissent pattern is supported by more events and a longer record. The common-period design gives all nine justices the same set of close-case opportunities, but it cannot make short personal histories as stable as longer ones. Rates, counts, and denominators should appear together.

Issue mix may also shape the results. Roberts and Kavanaugh have formed pivotal coalitions across voting rights, capital procedure, public benefits, federal jurisdiction, and presidential power. Gorsuch’s dissents with liberals span tribal rights, immigration, veterans’ law, criminal law, and federal preemption. Barrett’s liberal-aligned dissents are more concentrated in administrative and environmental disputes.

The index describes votes rather than motivation. Case-specific reasoning, precedent, procedure, and statutory text may explain individual alignments. The opinions remain necessary to interpret the coalitions identified by the data.

The 2025 term displayed both ideological cohesion and repeated cross-bloc movement. Roberts and Kavanaugh joined the three liberals in Bowe, Pitchford, and Cook. Roberts and Barrett did so in Watson, while Barrett and Kavanaugh supplied the conservative votes in Hamm. Jackson and Sotomayor joined three conservatives in T.M. Gorsuch joined the three liberals in Konan and paired with Jackson in Monsanto.

The rankings assign those votes to different roles. Roberts leads in majority-side outcome leverage. Kavanaugh is his most frequent joint pivotal partner. Gorsuch provides the strongest dissent-side connection across blocs. Jackson has cast several consequential crossover votes while remaining predominantly aligned with the liberal bloc. Barrett’s record shows an emerging dissent-side pattern whose durability remains uncertain.

The Court’s cross-bloc activity is therefore distributed across a network rather than concentrated in one permanent median seat. Roberts anchors narrow majorities. Gorsuch anchors mixed dissents. Kavanaugh, Jackson, and Barrett connect the blocs in smaller sets of cases. Future terms will show which relationships persist and which remain tied to a particular docket.

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The Supreme Court’s 2025-26 term will likely be remembered first for its major rulings on presidential power and federal policy. The court decided disputes involving tariffs, removal power, birthright citizenship, immigration enforcement, federal communications policy, election rules, gender identity, gun regulation, and religious liberty. Several of those decisions came near the end of June, and many divided the justices in familiar patterns.

The term also produced a more complicated institutional story. The SCOTUSblog Stat Pack showed that Chief Justice John Roberts and Justice Brett Kavanaugh were most often in the majority; that 6-3 ideological divisions were unusually prominent; that Justices Clarence Thomas and Ketanji Brown Jackson again wrote heavily; and that some of the court’s longest opinions were dissents.

This article starts from those figures and asks a different question: where did the court’s visible work go? Vote totals show who won. Majority frequency shows which justices were most often in control. Word counts show which opinions were longest. But those measures, standing alone, do not identify the cases that took the most time, generated the most writing, produced the sharpest divisions, and fractured the court’s reasoning most visibly.

For that reason, this analysis focuses mainly on the court’s argued-case output. The court’s own term list reports 64 argued cases across 58 arguments, resulting in 57 opinions for argued cases: 56 signed opinions and one per curiam opinion dismissing a case as improvidently granted. The main analysis uses the 56 signed argued opinions as the merits baseline, while treating the per curiam DIG as a separate workload outlier.

The measure used here is a “Court Effort Index.” It combines four observable features of the court’s work: the number of days from argument to decision, the total words in the court’s opinions, the degree of division among the justices, and the number and complexity of separate writings. The index is descriptive. It does not measure legal importance, policy consequence, public attention, or whether the court reached the right result. It measures visible institutional effort.

That lens puts the term’s presidential-policy cases near the center of the story. Learning Resources, Slaughter, Cook, and Barbara all involved presidential authority or presidential policy, and each required the court to speak in a term already marked by high-profile disputes over the executive branch. But the same lens also captures other parts of the docket: rights cases, election disputes, criminal and habeas cases, and federal-power disputes that generated long opinions, late decisions, and multiple separate writings.

The first question is whether this term was unusual compared with the court’s recent argued-case baseline. On ordinary measures, the answer is mixed. On a workload measure, the answer is more focused: the term’s visible institutional effort was concentrated in a relatively small group of argued decisions that were late, long, closely divided, and often fractured.

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The term in recent argued-case context

Before turning to the Court Effort Index, it is useful to place the 2025-26 term against the court’s recent argued-case baseline. The comparison is important because the term was not unusual in every conventional way. Its unanimity rate among signed argued opinions was close to the recent average. Its June share was also lower than the average for the 2020 through 2024 terms. The sharper difference was in the concentration of divided outcomes.

For this comparison, the baseline comes from argued-case data for the 2020 through 2024 terms. The current term uses signed argued opinions as the merits denominator.

Among those 56 signed argued opinions, 25 were unanimous, for a unanimity rate of 44.6%. That is close to the 42.7% average for the 2020 through 2024 terms and the 45.8% average for the Jackson-era terms from 2022 through 2024. The term looks more distinctive on close cases. Twenty-three of the 56 signed argued opinions were decided by either 5-4 or 6-3 votes, a close-case rate of 41.1%. That exceeds both the 2020 through 2024 average of 36.8% and the Ketanji Jackson-era average of 34.5%.

The same pattern appears in the raw 6-3 numbers. 17 of the 56 signed argued opinions were decided 6-3, or 30.4%. That is higher than the 24.1% average from 2020 through 2024 and the 23.2% average since Justice Ketanji Jackson joined the court. By contrast, the 5-4 rate was not unusually high. Six of the 56 signed argued opinions were 5-4, or 10.7%, slightly below both recent baselines.

The timing story is also more precise than a simple “June crunch” account. 25 of the 56 signed argued opinions came in June, or 44.6%. That is below the 48.4% average from 2020 through 2024 and below the 49.7% Jackson-era average. The term’s June story is therefore less about the raw number of June decisions than about the kinds of decisions released then. As later sections show, June contained a disproportionate share of the term’s close, ideologically divided, word-heavy, and fragmented cases.

That context frames the rest of the analysis. On conventional measures, the 2025-26 term was not simply an outlier across the board. But it did have a higher concentration of close and 6-3 argued decisions than the court’s recent baseline. The Court Effort Index builds from that starting point by asking which of those cases consumed the most visible institutional work.

Measuring visible Court effort

This article uses a “Court Effort Index” to identify the argued decisions that placed the greatest visible demands on the court. The index is built from four public-facing features of the court’s work: how long a case took to decide after argument, how much the justices wrote, how sharply they divided, and how fragmented the published opinions were.

The main analysis uses the court’s 56 signed argued opinions as the merits baseline. The per curiam DIG, Hamm v. Smith, is treated separately because it generated substantial writing but did not produce a signed merits majority opinion.

The index is descriptive. It does not measure whether a decision was legally correct, politically important, doctrinally disruptive, or publicly salient. It measures visible institutional effort: the time, writing, disagreement, and splintering that appeared on the public record.

The time component comes from the number of days between oral argument and decision. This is the most direct measure of how long a case remained pending after argument. It is not a perfect measure of difficulty, but it captures one observable form of institutional burden.

The writing component uses total opinion words. A longer set of opinions may reflect a broad majority opinion, extensive separate writings, lengthy dissents, or all three. The Stat Pack already identified several unusually long opinion packages this term, including Barbara, Learning Resources, Slaughter, Callais, and Cook.

The division component gives more weight to close and ideologically divided cases. Unanimous cases receive the lowest division score. Lopsided non-unanimous cases receive more weight. 6-3 decisions receive still more, especially when they follow the familiar ideological alignment. 5-4 decisions receive the highest division score.

The fragmentation component captures something vote counts alone miss. A case can be unanimous but still produce separate concurrences. A case can have a majority judgment but fractured reasoning. A case can also generate multiple dissents or partial joins.

Each component is converted to a common scale before the four pieces are combined. That prevents any single raw measure, such as word count, from automatically dominating the index. The final score can be seen as a ranking tool: it identifies which argued merits cases combined delay, writing, division, and fragmentation most strongly.

The index also has limits. It does not capture cert-stage work, emergency applications, internal negotiations among chambers, edits that do not appear in the published opinions, or the workload of clerks and court staff. Nor does it distinguish between a long opinion that clarifies doctrine and a long opinion that reflects disagreement over basic premises. Those are questions for legal analysis. The index answers a narrower empirical question: where did the court’s visible merits-opinion work concentrate?

The argued cases that consumed the Court

The highest-effort cases were not simply the longest opinions, the latest opinions, or the closest votes. They were the cases where several forms of institutional strain overlapped: delay after argument, extensive writing, close division, and fragmented reasoning.

The leading group was dominated by disputes over presidential power, constitutional rights, and politically salient federal policy. Cook and Slaughter placed presidential authority near the center of the court’s workload. Learning Resources also belonged in that cluster because of the amount of writing and the number of separate opinions it generated, even though it was not one of the slowest cases from argument to decision. Barbara, the birthright-citizenship case, was the longest opinion package of the term and belongs in the same presidential-policy conversation, even though its effort profile was driven more by length and fragmentation than by delay.

Other high-effort cases came from outside the presidential-power docket. B.P.J., Callais, Wolford, Landor, and NRSC show how rights, election, religion, gun, and campaign-finance disputes also absorbed substantial visible work. FS Credit and other business or statutory cases show that the index is not simply measuring public salience. A case could rank highly because it combined a divided vote with a long decisional period and multiple opinions, even if it was not one of the term’s most publicly prominent disputes.

The pattern is important because it extends the Stat Pack’s separate findings. The Stat Pack identified the term’s longest opinions, closest divisions, authorship totals, and timing outliers. The Court Effort Index combines those features into a single case-level measure. On that measure, the term’s center of gravity was not spread evenly across the docket. It was concentrated in a relatively small set of argued decisions that were long, divided, and often fractured.

The cases near the top of the index also illustrate why the measure should be read as a workload and fragmentation score, not as a legal-importance ranking. Some high-effort cases were plainly among the term’s headline decisions. Others were more technical but still demanded substantial published writing and produced sharp disagreement. The point is not that each case had the same public or doctrinal significance but rather that each left a large footprint on the court’s public work product.

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Why those cases ranked high

The top cases did not reach the top of the Court Effort Index for the same reason. Some were slow. Some were long. Some were closely divided. Some produced several separate opinions or fractured alignments. The index matters because it separates those different forms of visible work and then asks where they overlapped.

The longest opinion packages were concentrated in a small group of cases. Barbara and Learning Resources generated the most total writing by a substantial margin, followed by Slaughter, Callais, Cook, Wolford, B.P.J., Al Otro Lado, Chatrie, and Hamm.

The slowest cases were not always the longest. Landor took 226 days from argument to decision. NRSC and Slaughter each took 204 days. Fernandez and Rutherford each took 198 days. Those cases show that delay is a distinct form of effort. A case can remain pending for much of the term even if its final opinion package is not among the very longest.

Division added another layer. A unanimous 12,000-word decision and a 6-3 ideological 12,000-word decision do not reflect the same public-facing institutional burden. The latter also reflects a failed effort to produce broader agreement, or at least a case in which the justices chose to register disagreement in published opinions. That is why the index gives added weight to close votes and especially to ideologically aligned 6-3 decisions.

Fragmentation captures still another dimension. Some decisions generated multiple concurrences, dissents, partial joins, or opinions that did not divide cleanly into a single majority and a single dissent. A case with many opinions can signal uncertainty about rationale, disagreement over scope, or competing efforts to shape how lower courts and future litigants understand the ruling.

The component scores show why the same cases can look different depending on the metric. Barbara and Learning Resources stand out most sharply on writing and fragmentation. Landor and NRSC stand out more on time. Cook, Slaughter, B.P.J., Callais, and Wolford combine several forms of effort at once: close division, substantial writing, and significant delay or fragmentation.

Which issue areas drove the burden?

The high-effort cases were not evenly distributed across the docket. They clustered most clearly in disputes involving rights, constitutional structure, presidential authority, and federal policy. That pattern matters because it shows that the term’s workload was not just a function of how many cases the court decided in each subject area. It was also shaped by which kinds of cases generated delay, extensive writing, close division, and fragmented opinions.

The rights and constitutional docket carried a large share of that burden. Cases involving gender identity, the Second Amendment, religious liberty, redistricting, campaign finance, and free speech produced several of the term’s most contested decisions. B.P.J., Wolford, Landor, Callais, and NRSC all ranked highly on visible effort because they combined close votes with substantial writing, significant time to decision, or multiple separate opinions.

Government-power and administration cases also stood out. Learning Resources, Cook, Slaughter, and Barbara were especially important to the term’s public profile because they involved presidential authority or presidential policy. They also consumed substantial visible institutional work. Some were long, some were fractured, and some were decided near the end of the term. Together, they show how the court’s presidential-policy docket became one of the central sources of visible effort.

By contrast, some categories that produced a substantial number of cases did not always produce the same average effort. Criminal, habeas, procedure, jurisdiction, and business cases were important parts of the docket, and individual cases in those categories ranked highly. But as groups, they generally produced lower average effort scores than the rights and government-power categories.

The issue-area comparison helps explain why the Court Effort Index adds something beyond a list of headline cases. The term’s most demanding public work was not simply where the public attention was highest. It was where legal stakes, institutional stakes, coalition divisions, and separate writings overlapped.

June was an intensity story

Late-term decisions are a familiar feature of the Supreme Court’s calendar. The 2025-26 term was no exception, but its June pattern was more about the character of the decisions than the number of them.

Among the term’s 56 signed argued opinions, 25 were released in June, or 44.6%. That was not unusually high by recent standards. In the five terms from OT2020 through OT2024, the June share of signed argued opinions averaged about 50.3%. The Jackson-era average from OT2022 through OT2024 was about 51.2%. On raw volume, then, June 2025 was not an outlier.

The more striking feature was the concentration of divided cases. Sixteen of the 25 June signed argued opinions were decided by either 5-4 or 6-3 votes, a close-case rate of 64.0%. That matched the highest June close-case rate in the comparison period. The June 6-3 rate was even more distinctive: 13 of the 25 June signed argued opinions were decided 6-3, or 52.0%, higher than any June from OT2020 through OT2024 in the comparison data.

The comparison sharpens the point. June decisions are not new, and this term did not produce the largest June output in recent years. But June 2025 was unusually dense with closely divided and 6-3 decisions. Before June, only seven of the term’s 31 signed argued opinions were decided 5-4 or 6-3, and only four were 6-3. In June, those figures rose to 16 close decisions and 13 raw 6-3 decisions.

The ideological pattern was also concentrated late in the term. Where were 15 total 6-3 conservative-majority ideological splits across the full term. Within the signed argued merits denominator used here, 13 such decisions remain after excluding no-argument decisions and the argued DIG; 11 of those 13 came in June. The historical comparison here uses raw vote splits rather than ideological alignments because the SCDB excerpt used for OT2020 through OT2024 does not include justice-level voting lineups.

Which justices carried the visible workload?

The case-level analysis shows where the court’s visible work was concentrated. A separate justice-level view shows how that work was distributed among the members of the court.

This measure should be interpreted carefully. It does not capture chambers workload, cert-stage work, emergency applications, internal negotiations, or the Chief Justice’s opinion-assignment authority. It also does not measure who shaped an opinion behind the scenes. It measures only visible merits-opinion work: the published opinions each justice authored and the effort level of the argued cases in which each justice wrote for the court.

The justice-level score combines three components. Visible writing volume accounts for 40% of the score and reflects the amount of published writing attributable to each justice. Majority-opinion writing burden accounts for 35% and is based on the Court Effort Index scores of the argued cases in which the justice wrote the court’s principal opinion. Separate-writing burden accounts for the remaining 25% and reflects the justice’s concurrences and dissents. Each component is normalized so that the justice with the highest raw value receives a score of 100, with the other justices measured relative to that leader. The overall score is therefore comparative rather than an estimate of hours worked, and the component shares should be read as indicators of where each justice’s visible workload was concentrated.

The justice-level pattern divided in two directions. Some justices carried more of the visible writing burden through concurrences and dissents. Others carried more of the majority-opinion writing burden by writing for the court in high-effort cases.

That distinction is important this term. The Stat Pack already showed that Justices Clarence Thomas and Ketanji Brown Jackson were the term’s most prolific opinion writers, with Thomas writing the most total opinions and concurrences and Jackson writing the most dissents. It also showed that Chief Justice John Roberts wrote the fewest total opinions, all of them majority opinions.

The Court Effort lens adds another layer. Thomas, Jackson, and Justice Sonia Sotomayor were especially prominent on visible writing and separate-writing burden. Roberts, despite writing fewer opinions overall, carried the heaviest majority-opinion writing portfolio because several of his majority opinions came in high-effort cases. Justices Samuel Alito, Amy Coney Barrett, and Brett Kavanaugh also ranked highly on majority-opinion writing burden.

The stacked bars show how those components combine. A justice with a high overall score may reach that position through a large amount of published writing, through responsibility for majority opinions in especially demanding cases, through substantial separate writing, or through some combination of the three. The segments within each bar represent the weighted contribution of each component to the justice’s overall score.

The broader point is that the workload story changes depending on what kind of work is being measured. A justice can carry a heavy public writing load without writing the court’s most demanding majority opinions. Another justice can write fewer opinions overall but author majority opinions in cases that were long, divided, or institutionally difficult. This section therefore complements, rather than replaces, the case-level analysis.

What this adds to the Stat Pack

The Stat Pack provides the term’s scoreboard. It reports the number of opinions, the distribution of vote splits, the justices’ majority rates, the agreement patterns among justices, the authorship totals, the circuit scorecard, the timing of decisions, and the longest opinions. Those measures remain the starting point for understanding the term.

This analysis uses those same building blocks for a different purpose. Rather than asking only how often the court was unanimous, how often each justice was in the majority, or which opinions were longest, it asks where the court’s visible work was concentrated. The result is not a competing account of the term, but a second layer on top of the Stat Pack’s findings.

The main point is methodological as much as descriptive. Standard term-end measures are useful, but they can flatten different kinds of work into the same categories. A unanimous, short, early decision and a fragmented, late, 6-3 decision both count as one decision. A long majority opinion and a long dissent both count toward opinion length, but they reflect different institutional dynamics. The Court Effort Index does not resolve all of those differences, but it makes them visible.

The term’s hidden center of gravity

The 2025-26 term can be described in familiar ways: a term with important presidential-policy disputes, a substantial number of unanimous decisions, several sharp 6-3 divisions, and unusually long separate opinions. Those descriptions are all accurate. But they do not fully capture where the court’s visible effort went.

That workload was especially concentrated in June. Late-term decisions are not new, and this term did not produce an unusually large June output by recent standards. But June 2025 contained an unusually dense share of close and 6-3 signed argued opinions. The end-of-term story was therefore not just about when the court acted. It was about what kind of cases remained.

The Stat Pack shows the term’s outcomes and voting patterns. The Court Effort Index shows the institutional burden behind them (this could be further augmented in the future by linking in emergency docket work). The difference matters because the court’s work is not reflected only in who wins or how the justices vote. It is also reflected in the time the court takes, the length of the opinions it issues, the number of separate writings it produces, and the extent to which its reasoning splinters.

On that measure, the 2025-26 term was defined less by the average case than by a concentrated set of demanding ones. Those cases are likely to shape how the term is remembered, not only because of what the court decided, but because of how much visible work it took for the court to decide them.

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Some Supreme Court arguments seem relatively easy to read. After the Court reheard Louisiana v. Callais, Fox News reported that the conservative majority appeared “poised to significantly weaken” the Voting Rights Act. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch had questioned the constitutionality of race-conscious redistricting, while Justice Brett Kavanaugh suggested that such remedies might require a time limit. The eventual decision confirmed the broad direction visible from the bench, even if the scope and doctrinal structure of the ruling were harder to foresee.

Other arguments reveal the likely winner more clearly than the precise coalition. In Trump v. Barbara, CBS News reported that the Court appeared skeptical of President Trump’s effort to restrict birthright citizenship, while a preargument Washington Post analysis described the administration’s chances of prevailing as extremely low. The administration ultimately lost. But the exact lineup was less apparent: Chief Justice John Roberts wrote the Court’s opinion, and the judgment drew support from members of both ideological blocs.

Chatrie v. United States illustrates the opposite problem. After argument, the Associated Press reported that the Court seemed inclined to permit police use of geofence warrants and that the justices had not embraced Okello Chatrie’s Fourth Amendment challenge. The Court later ruled 6–3 that the government’s acquisition of his cellphone-location records was a search. One postdecision account called the result “somewhat surprising” because the argument had appeared to point toward continued use of the warrants, perhaps subject only to limits on time and geographic scope.

Together, the three cases capture the promise and the danger of reading the Court from the bench. Sometimes the questioning exposes the likely direction of the decision. Sometimes it identifies the winner but not the coalition. And sometimes a confident reading of the argument points the wrong way.

This article tests whether the apparent signals can be measured systematically. It examines the 56 signed decisions in cases argued from October 2025 through April 2026, encompassing 495 individual justice votes. The analysis compares several ways of reading oral argument: the number of words and speaking turns directed to each side, proportional and justice-specific measures of questioning, Court-wide patterns, and the question-based measures used in earlier empirical research. It then compares those measures with Martin–Quinn ideological scores, models combining ideology and oral argument, and simple rules such as always selecting the petitioner (historically the Court rules for petitioners 66% of the time or more. One theory for this is that the justices have more to gain by overturning lower court decisions than by upholding them).

The distinction between predicting votes and predicting winners is central. An oral-argument model may correctly identify most of the individual votes in a case and still miss the outcome if its errors include the pivotal members of the majority. Conversely, a rule that predicts the petitioner in every case may identify many winners without explaining much about the justices’ behavior.

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Federal circuit opinions create a practical problem for anyone trying to evaluate appellate advocates. They usually identify the lawyers, state the result, describe the issues, and sometimes reveal how the court treated each side’s arguments. They rarely say directly whether the advocacy was excellent, ordinary, or ineffective. The evidence is embedded in the court’s disposition, the posture of the appeal, the relief obtained, the treatment of party arguments, and the importance of the ruling.

This project uses that evidence to rank visible appellate outcomes across the federal courts of appeals. It is similar to my previous evaluation of Supreme Court advocates except rather than using briefs to understand counsels’ arguments, it imputes their positions from the opinions themselves. The current database covers recent, published, counsel-bearing opinions from the Second, Ninth, D.C., and Sixth Circuits. It contains 443 calibrated side-level score rows, and 560 argument-level signals.

The focus of the article is which advocates and counsel teams are associated with the strongest visible outcomes in circuit-court appeals, after accounting for case difficulty, relief obtained, opinion importance, argument uptake, and circuit-specific score distributions?

Two cases show the range of assignments the ranking must handle. In United States v. Sanchez, the Ninth Circuit considered a criminal defendant’s challenge to a conviction after a racially biased juror participated in deliberations for most of the case. Theodore B. Blank argued for Sanchez. The district court had excused the juror, accepted an eleven-person verdict, and denied a new-trial motion. The Ninth Circuit reversed and remanded for a new trial, holding that the district court used the wrong legal standard and that the government had not rebutted the presumption of prejudice. The panel rejected Sanchez’s broadest automatic-reversal theory, while also observing that he argued “with some persuasive force” that the distinction between his case and earlier biased-juror precedent was more technical than meaningful.

The Second Circuit’s YPF litigation presents a different high-end result. In Petersen Energia Inversora / Eton Park v. Argentine Republic and YPF, the court reviewed a $16.1 billion judgment arising from Argentina’s 2012 nationalization of YPF. The case involved foreign law, corporate governance, sovereign conduct, multiple appeals, amici, and a divided panel. Robert J. Giuffra Jr. and his Sullivan & Cromwell team represented Argentina. Mark P. Goodman and Debevoise & Plimpton represented YPF. Paul D. Clement and other elite counsel represented the shareholder plaintiffs. The Second Circuit reversed the judgment against Argentina, affirmed judgment for YPF, and remanded.

Sanchez and YPF involve different legal worlds, but each presents a measurable appellate assignment: a starting posture, requested relief, stakes, argument treatment, and a written appellate result. Sanchez is a difficulty-adjusted criminal-defense reversal. YPF is a high-stakes institutional appellate win. A credible dataset needs room for both.

The measure used here is an Opinion-Based Counsel Outcome Score: a score of what the written appellate record reveals. The opinion-based score has a narrower target: visible appellate outcomes associated with counsel.

The top of the leaderboard begins with a civil-forfeiture appeal from the Ninth Circuit. The top score is from United States v. $1,106,775 in U.S. Currency, where the claimant-side team, including Alyssa Barnard-Yanni, Robert Loeb, and Orrick Herrington & Sutcliffe, received the highest circuit-percentile placement in the dataset. Immediately behind it is United States v. Sanchez, Theodore B. Blank’s criminal-defense win in the Ninth Circuit.

What is in the dataset

The dataset is a four-circuit analysis, not a hand-selected list of headline appeals. The master scoring sheet contains 443 calibrated side-level rows from recent published, counsel-bearing opinions in the Second, Ninth, D.C., and Sixth Circuits. A separate argument-uptake sheet preserves 560 opinion-based argument and citation signals. Each score row includes the party position, counsel block, outcome, relief obtained, baseline expected position, case-importance score, argument uptake, raw opinion-based outcome score, circuit-calibrated score, and circuit percentile.

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The Supreme Court’s most visible work happens when the opinions arrive. The vote lineups are parsed, the dissents are quoted, and the first wave of commentary deigns cases as blockbusters, compromises, or surprises. But that is only the first life of a Supreme Court decision. The second begins later, when lower courts decide what the ruling actually requires.

That second life is harder to see. It unfolds in criminal appeals, immigration disputes, administrative-review cases, state postconviction proceedings, employment suits, property-rights litigation, and ordinary motions practice. It is also where some of the Court’s most important work becomes practical law. A decision can dominate public debate and then leave a comparatively narrow judicial trail. Another can attract little public attention and then become a rule that lower courts apply hundreds or thousands of times.

The comparison is deliberately bounded. The cases examined here come from a relatively recent slice of the Court’s work, close enough in time that their later citations can be compared without treating a 30-year-old precedent and a brand-new ruling as if they had the same opportunity to develop. They also span several recurring categories of modern Supreme Court litigation — criminal procedure, administrative law, civil rights, religious liberty, arbitration, immigration, property rights, and state regulatory power. The set is not meant to include every important decision from the period. It is a cross-section of 15 cases chosen to test a more specific question: when the Court decides consequential cases across different fields, what kinds of lower-court lives do those decisions actually have?

The data collected for this article show the second life distinction sharply. Ramos v. Louisiana, Carpenter v. United States, and Bostock v. Clayton County have the largest raw lower-court footprints in this group, each approaching or exceeding 1,900 later citing decisions. But raw citation totals tell only part of the story. Lucia v. SEC has fewer total citations than Carpenter or Bostock, yet later courts engage it closely at a higher rate. Kisor v. Wilkie, a technical administrative-law decision, has become a durable checklist for agency-deference questions. Wayfair changed the economics of state taxation and online commerce while producing a comparatively modest judicial citation trail.

The result is a different map of Supreme Court downstream influence. Some decisions become workhorses. Some become boundary tests. Some migrate into neighboring fields. Some require state systems to absorb a new constitutional rule. Some matter because they change behavior outside litigation.

The figure below maps that second life. The horizontal axis shows how often later courts cite a decision. The vertical axis shows how often those courts do more than merely cite it. The size of each point reflects how often later courts limit, distinguish, or otherwise treat the decision negatively. The point is not to identify a single “most important” case. It is to show that Supreme Court impact has more than one dimension.

A Supreme Court decision’s second life includes more than the number of later cases citing it. Relevant questions include: How often do lower courts cite the decision? Do they examine it closely or merely invoke it? Does it appear mostly in federal court, state court, trial courts, or appeals courts? Do later courts extend it, limit it, or distinguish it? Does the decision migrate into adjacent fields? Finally, does it change behavior outside litigation in ways that citation counts may not fully capture?

Measuring a Decision’s Second Life

To see those patterns, this article looks at a group of recent Supreme Court decisions and tracks how later courts used them. The cases range across constitutional criminal procedure, administrative law, religious liberty, employment, arbitration, federal courts, immigration, property rights, state taxation, and separation of powers. The goal is to compare different forms of lower-court influence.

The basic measure is simply how many later judicial decisions cite the Supreme Court case? But citation volume alone can be misleading. A case cited 2,000 times in passing may be doing less analytic work than a case cited 1,000 times in opinions that closely examine its reasoning. So, the analysis also tracks how deeply later courts engage the decision. The key measure used here is the substantive-engagement rate: the share of later decisions that either examine or discuss the case, rather than simply cite or mention it.

The analysis also separates federal and state use. That matters because some decisions live overwhelmingly in federal district courts, while others are absorbed by state criminal, civil, or tax systems. Ramos, for example, is a state-court implementation story. Lucia and Seila Law are almost entirely federal stories. Carpenter sits somewhere in between, with a large federal footprint but meaningful state-court use as courts confront new surveillance technologies.

A third measure is negative or limiting treatment. That does not necessarily mean a case has lost force. Often it means the opposite: later courts are trying to determine the edge of a powerful rule. Carpenter’s relatively high limiting-treatment rate reflects the constant question whether a new technology is close enough to cell-site location data. Masterpiece Cakeshop’s limiting rate tells a different story: lower courts often treat it as a narrow religious-neutrality decision rather than a broad exemption from antidiscrimination law.

Lastly, the data include recency. A decision with a large historical footprint may no longer be generating much new litigation. Another may still be accelerating. Bostock is especially important on this measure, with more than 1,000 citing decisions in the last three years. That recent activity confirms that its second life is still unfolding across employment, education, healthcare, religious-liberty, and civil-rights disputes.

What the Numbers Show

The first lesson from the data is that lower-court impact does not move in lockstep with public attention. Some of the cases with the largest second lives were major public events. Carpenter and Bostock fit that description. Others were much more technical on decision day. Kisor, Lucia, Knick, and Seila Law did not generate the same broad public reaction, but each has become a recurring source of lower-court work.

By raw volume, Ramos sits at the top of this group, with 2,138 later citing decisions. Carpenter follows closely with 2,094, and Bostock has 1,939. But the next tier is just as revealing: Lucia has 1,563, Kisor has 1,418, Epic Systems has 1,400, Knick has 1,181, and Seila Law has 1,076. That is a striking amount of activity for a set of decisions that includes several technical administrative, remedial, arbitration, and federal-forum cases.

The pattern becomes clearer when the cases are grouped by the kind of work they ask lower courts to perform. Workhorse cases tend to generate repeat applications: decide whether an agency interpretation deserves deference, whether an administrative adjudication requires a new hearing, whether an agency structure creates a constitutional problem, or whether a takings plaintiff can sue in federal court. Boundary cases generate a different kind of work: decide whether a new technology, factual setting, or government action is close enough to the Supreme Court’s earlier ruling.

The most revealing single metric may be substantive engagement. Lucia has the highest engagement rate in the group, at 57 percent. Seila Law and Carpenter are also high, both around 45 percent. Kisor is lower but still substantial, at about 38 percent. Those numbers suggest that lower courts are not simply citing these cases as background authority.

By contrast, Bostock has a large footprint but a lower engagement rate, about 25 percent. That does not make it less important. It suggests a different form of importance. Many courts cite Bostock for a now-settled employment-law rule, while the most important later fights concern whether its reasoning extends into Title IX, health care, education, religious-liberty disputes, and agency guidance. Bostock’s influence is therefore less about constant close analysis in every case and more about breadth and depth.

The court distribution is worth observing as well. Ramos is the clearest state-court implementation case, with roughly 72% of its later citations coming from state courts. Lucia, Seila Law, Kisor, Knick, and Trump v. Hawaii are overwhelmingly federal. Carpenter has a meaningful state-court presence, which fits its role as a digital-privacy benchmark used across criminal systems. Wayfair is almost the mirror image of the volume leaders: only 214 citing decisions, but a real-world regulatory impact far larger than that number suggests.

Taken together, the data support a more textured account of Supreme Court influence. The Court’s downstream power is not just the power to produce famous decisions. It is the power to create legal tasks that lower courts must repeat: apply a test, draw a boundary, reopen a forum, implement a remedy, absorb a new rule, or decide whether a holding migrates beyond its original setting.

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Three Ways a Decision Becomes Law

The numbers show the contours of the second life. The next question is what that second life looks like in legal practice. Three cases — Kisor, Carpenter, and Bostock — show three distinct ways lower courts transform Supreme Court decisions after decision day.

Kisor is the quiet workhorse. The decision did not overrule Auer deference, the doctrine under which courts sometimes defer to an agency’s interpretation of its own regulation. Instead, it made the doctrine more demanding. Later courts now use Kisor as a checklist: Is the regulation genuinely ambiguous? Has the court exhausted the ordinary tools of interpretation? Is the agency’s interpretation authoritative? Does it reflect agency expertise? Is it fair and considered, rather than a convenient litigation position? Would deference create unfair surprise?

That kind of decision can matter enormously without generating much public drama. Kisor has been cited in 1,418 later decisions, nearly 95 percent of them federal. Its substantive-engagement rate is about 38 percent, which means lower courts often do more than invoke it in passing. They use it to decide whether deference is available at all. The result is a decision that formally preserved agency deference while giving lower courts a structured way to deny it. Kisor’s second life is s a repeated judicial habit.

Carpenter is different. It is the boundary case. The Court held that the government generally needs a warrant to obtain historical cell-site location information, but the harder work was left for later courts: deciding which technologies are close enough to Carpenter to trigger the same constitutional concern. That explains its unusual profile. Carpenter has 2,094 later citing decisions, a substantive-engagement rate of about 46 percent, and a negative or limiting rate of 14 percent — one of the highest in this group.

That limiting rate is not a sign that Carpenter failed. It is evidence that Carpenter became the reference point for a recurring analogy problem. Courts have had to ask whether pole cameras, license-plate readers, tower dumps, internet search records, app data, and other surveillance tools reveal the kind of comprehensive, retrospective account of a person’s movements that troubled the Court in Carpenter. In some cases, lower courts extend the logic. In many others, they distinguish it. Either way, Carpenter shapes the analysis because every new technology must be measured against it.

Bostock has a third kind of second life. It is a has moved into new legal terrain. Its holding was formally about Title VII: an employer who fires a worker for being gay or transgender discriminates because of sex. But its reasoning immediately raised a broader question. If discrimination because of sexual orientation or gender identity is discrimination because of sex under Title VII, what follows for Title IX, health care, education, agency guidance, religious-liberty disputes, and state civil-rights law?

The data capture that continuing spread. Bostock has 1,939 later citing decisions, including more than 1,000 in the last three years. Its engagement rate, about 25 percent, is lower than Carpenter’s or Lucia’s. That makes sense. Many courts cite Bostock for a settled employment-law proposition. But the most important Bostock cases are not routine citations. They are the cases asking how far the logic travels.

That is why Bostock remains one of the central examples in this study. Its second life is not just the enforcement of a holding. It is the struggle over the extent of that decision and downstream implications along with containment. Some courts treat Bostock as guidance for related statutes and settings. Others insist that the decision resolved only the employment question before the Court. Bostock’s downstream importance lies in that recurring fight over legal analogy: when does a textual rule stay inside its original statute, and when does it become a general principle?

Together, Kisor, Carpenter, and Bostock show why citation counts alone are too thin. Kisor became a checklist. Carpenter became a boundary marker. Bostock became an engine of change in an unexpected way. Each decision matters because lower courts had to do something with it — not just quote it, but operationalize it.

Optics, Work, and the Cases in Between

The comparison cases sharpen the central point: public salience and lower-court salience are related, but they are not the same thing. Some decisions are famous because they resolve a visible national conflict. Others become important because they give lower courts a task they must repeat.

Ramos is the cleanest state-implementation story in the dataset. It has the largest raw footprint, with 2,138 later citing decisions, and about 72 percent of those citations come from state courts. That is exactly what one would expect from a decision requiring state criminal systems to absorb a new jury-unanimity rule. Timbs, by contrast, has a smaller footprint, but it belongs in the same family: its influence runs through state and local systems that impose fines, fees, and forfeitures.

Lucia and Seila Law show a different pattern. Neither had the public salience of Bostock, Carpenter, or Masterpiece Cakeshop, but both became major federal workhorses. Lucia has the highest substantive-engagement rate in the group, 57%, while Seila Law is above 45%. They illustrate a quiet truth about Supreme Court power: structural and administrative-law decisions can generate enormous downstream work because they affect remedies, agency authority, standing, removal, and the validity of government action.

Masterpiece Cakeshop shows the opposite phenomenon. It was one of the most closely watched decisions of its term, yet it has a smaller lower-court footprint than many less-publicized cases. Its later use also appears relatively narrow. Courts often treat it as a case about religious neutrality and government hostility, not as a broad rule allowing religious objections to override antidiscrimination law. Espinoza and American Legion are also lower-volume religion cases, though each remains conceptually important in its domain: public funding of religious education for Espinoza, and history-and-tradition analysis for longstanding religious symbols in American Legion.

Wayfair is the necessary caution. With only 214 citing decisions, it would look modest on a citation chart. But that would badly understate its practical importance. Wayfair changed the legal and economic landscape for state taxation of online commerce. It provides an interesting clarification and dichotomy: lower-court citation data measure judicial second life, not total real-world impact.

The ranking divergence is just as revealing. Some cases rank high no matter how they are measured. Carpenter is near the top in both citation volume and substantive engagement. Lucia, by contrast, rises sharply when the focus shifts from raw citations to depth of use. Bostock moves in the other direction: it has one of the largest citation footprints, but much of its later use is routine, with its most important action concentrated in migration disputes. Epic Systems also has high volume but lower engagement, suggesting a settled implementation role. Gundy has a smaller footprint but a relatively strong engagement profile for a signal case.

The lesson is that no single metric captures downstream importance. Citation volume identifies breadth. Engagement identifies doctrinal work. Negative or limiting treatment identifies pressure points. Court distribution identifies where the decision lives. Practical consequences may occur partly outside the courts. The better question is therefore not whether a Supreme Court decision was important in the abstract. It is what kind of work the decision made other courts — and legal actors outside court — do next.

What the Court Leaves Behind

The data have limits. Citation counts do not capture every form of legal change. A decision like Wayfair can reshape government behavior, business planning, and state revenue systems without generating thousands of later opinions. Reported and unreported decisions also tell different stories about visibility and the newest cases in the dataset are still developing; their second lives may look different five years from now.

But the patterns are strong enough to change the way Supreme Court impact should be discussed. A decision’s importance cannot be measured only by the size of the public reaction on decision day or even through news coverage. Nor can it be measured only by the number of later citations. The more revealing question is what kind of legal work the decision creates.

Some decisions become instructions for other courts or for members of the public. Kisor tells courts how to ask whether deference is justified. Lucia tells them what remedy follows from an appointments defect. Some become reference points. Carpenter gives courts a benchmark for new surveillance technologies. Some become migration engines shifting the decision to possibly touch unexpected areas. Bostock forces courts to decide whether reasoning built for Title VII travels into other civil-rights regimes. Some become implementation mandates. Ramos required state criminal systems to absorb a new constitutional rule. Others, like Wayfair, show that a case’s practical importance can outrun its judicial footprint.

That is the Supreme Court’s second life. The Court announces the rule, but lower courts decide its working shape. They extend it, narrow it, repeat it, distinguish it, operationalize it, and sometimes contain it. The decisions that last longest may be the ones that give judges and litigants a recurring task.

A Supreme Court decision begins with an opinion. Its second life begins when everyone else has to figure out what to do with it.

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Paul Clement and Lisa Blatt both had standout OT2025 Supreme Court terms, but in different ways. Clement was one of the term’s most frequent advocates, appearing across a wide range of high-stakes cases and producing both major wins and difficult losses. Blatt appeared less often but produced a more consistently high set of case-adjusted scores. That contrast captures the central problem in evaluating Supreme Court advocacy: raw wins and losses do not necessarily convey advocate quality. A lawyer who wins an easy case (or predictable from the perspective of the justices’ priors) has not necessarily performed better than one who loses a hard case while narrowing the rule, drawing a dissent, or preserving the client’s core position.

This article uses a case-adjusted advocacy score to rank Supreme Court advocacy quality in OT2025 – the recently completed term. The goal is not to identify who caused the Court to rule a particular way as the analysis is not causal. It is to measure, from the public record, which advocates made the strongest showing given the assignments they had. Essentially, attorneys that faced the m The tracker covers 58 argued signed-opinion case slots and 110 party-attorney entries, using the Court’s decisions, judgments, vote splits, separate opinions, briefs, oral arguments, party posture, and case-difficulty indicators.

The result is a leaderboard, but not a simple one. Some of the highest scores belong to lawyers who secured major wins. Others belong to lawyers who lost but still achieved something meaningful: a fractured Court, a substantial dissent, a narrowed rule, or a remand posture that preserved future arguments. The rankings are therefore best understood as a measure of advocacy quality as reflected in the Supreme Court’s public record, not as a conventional win-loss table.

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How the Case-Adjusted Advocacy Score Works

The score measures not merely whether a lawyer won, but how strong the lawyer’s performance appears from the Court’s public record after adjusting for the difficulty of the assignment. Each party attorney receives a 0-to-100 score. The score starts with the expected difficulty of the case at the merits stage, then evaluates what counsel actually achieved.

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Supreme Court oral argument is sometimes treated as a forecasting exercise. Court watchers count questions, track interruptions, and listen for clues about which side has five votes. Sometimes the signals are obvious, sometimes they are misleading, and sometimes the most important part of argument is not who seemed to be winning, but which legal distinction the justices kept returning to.

That second question is the focus of this article. Instead of asking only whether oral argument predicted the winner, this article looks at how closely the Court’s final opinions tracked the issues, reasoning paths, limiting principles, and practical concerns developed at argument.

The resulting dataset covers 57 argued cases from the term. Each case was coded by comparing the oral argument transcript with the final opinion or opinions. The goal was to measure argument-decision congruence: how much the written decision reflected the argumentative structure aired in open court.

The key finding is that the Court’s opinions were usually highly congruent with oral argument. The average case scored 88.55 on a 100-point scale, with a median of 89.2. The range ran from 61.2 to 93.2, with a standard deviation of 4.37. Twenty-four cases scored 90 or higher. Another 26 fell between 85 and 89.9. Six scored between 80 and 84.9, and only one case fell below 70.

Those numbers point to a Court whose written decisions are, in most cases, built from the materials tested at argument. Oral argument may not always change votes, and this article’s goal is not to try to prove that it does. But the transcript often shows the architecture or foundation of the opinion to come.

A histogram should show the high-congruence concentration clearly: most cases clustered in the upper 80s and low 90s, with a small lower tail.

How the scores were built

The first step was to identify the major propositions developed at argument. These included the central legal rule, doctrinal tests, limiting principles, hypotheticals that framed the stakes, remedial concerns, and practical consequences the justices repeatedly explored. The second step was to code the final opinion or opinions for the propositions actually used in the decision. The third step was to match argument propositions to opinion propositions and classify the degree of overlap.

The final case score combined several components.

• Coverage: measured how much of the central argument material appeared in the final decision.

• Reasoning continuity: measured whether the opinion followed the same analytical route developed at argument.

• Directional alignment: captured whether the opinion adopted the side or legal frame that the argument most strongly previewed.

• Novelty: penalized opinions that introduced substantial new reasoning, resolved the case through an unexpected route, or left major argued questions unresolved.

• Separate opinions, remands, emergency posture, and DIG-like outcomes were treated as factors that could reduce congruence when they made the final decision less directly comparable to the argument.

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The Court was usually argument-faithful

The main empirical result is the overall concentration of high scores. 50 of the 57 cases, or about 88%, scored at least 85. That does not mean every decision was predictable in result. It means that in most cases, the Court’s written reasoning remained closely connected to the issues and distinctions tested at oral argument.

This may contradict some priors regarding oral argument. Oral argument is often framed as a moment of persuasion: did a lawyer win over a justice? That question is hard to answer from the outside. But the data support a more modest and more measurable claim. Oral argument is a public map of the Court’s reasoning constraints. It reveals which arguments the justices regard as viable, which limiting principles they need, and which doctrinal consequences they are trying to manage.

The highest scores in the dataset is dominated by cases where that map carried directly into the opinion. The highest-scoring case:

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• M & K Employee Solutions v. Trustees of the IAM National Pension Fund, scored 93.2;

• It was followed by Ellingburg v. United States at 92.4;

• Abouammo v. United States at 92.3;

• Hain Celestial Group v. Palmquist at 92.0;

• and Barrett v. United States at 91.9;

Those cases share a resemblance. They involved relatively bounded legal questions, the argument centered on a small number of decisive distinctions, and the final opinions used those same distinctions without major reframing.

Abouammo v. United States is the clearest example of this sequence . The case involved venue under 18 U.S.C. §1519, which criminalizes falsifying a document with intent to obstruct a federal investigation. At argument, the central dispute was whether venue belonged where the false document was created or where the investigation was located. The petitioner argued that the only essential conduct was falsification, which happened in Seattle. The government argued that the intended effect on a San Francisco investigation could support venue there.

The opinion followed the argument’s frame almost exactly. It identified falsification as the essential conduct element and held that venue lies where that conduct occurred. The case scored 92.3 because the Court’s opinion did not merely reach a result previewed at argument; it adopted the same conceptual path.

Keathley v. Buddy Ayers Construction, which scored 91.4, shows the same phenomenon in a different context. The argument focused on judicial estoppel after a bankruptcy debtor failed to disclose a later claim. The justices repeatedly tested whether the lower court’s knowledge-plus-motive rule was too rigid and whether equity required a broader look at mistake, intent, sophistication, attorney conduct, and prejudice. The final opinion adopted a totality-of-the-circumstances approach. The transcript and opinion were not identical, but they were working through the same problem in the same way.

Hain Celestial Group v. Palmquist, at 92.0, also scored near the top because the decision tracked the argument’s jurisdictional structure. The argument focused on whether an erroneous dismissal could cure a removal-jurisdiction defect. The final opinion’s reasoning remained closely tied to that issue and to the concern that an improper dismissal should not be allowed to manufacture federal jurisdiction.

These are the cases where oral argument most clearly functioned as a blueprint.

What actually drives congruence

The article’s most important validation comes from the component relationships. If the score were just a subjective impression, the internal measures would not necessarily converge. But they do.

The strongest predictor of the final score was reasoning continuity, which correlated with the final score at about 0.93. That is exactly what one would expect if the measure is capturing argument-to-opinion fidelity. When the Court used the same analytical mechanism developed at argument, the score rose sharply.

Directional alignment also had a strong positive relationship with the final score, at about 0.88. Cases scored higher when the final decision adopted the side, frame, or doctrinal orientation most clearly previewed at argument.

Coverage rate was also strongly positive, at about 0.78. Coverage alone did not do all the work though. A decision could mention many argued issues but still score lower if it resolved the case through a different conceptual route. That is why reasoning continuity was the stronger predictor.

On the negative side, novelty mattered a lot. The novelty penalty correlated with final score at about -0.81, and the novelty rate correlated at about -0.77. When the Court added substantial reasoning not developed at argument, reserved important argued questions, or shifted to a different decisional posture, congruence dropped.

The lower-scoring cases were often more institutionally complicated

The lower end of the distribution is just as revealing as the top. The lowest case by far was Hamm v. Smith, at 61.2. It served as the dataset’s low/non-merits anchor. Where the Court does not decide the merits path argued, the final decision cannot closely track the argument in the ordinary way.

The next group of lower-congruence cases included Cisco Systems v. Doe at 82.8, Landor v. Louisiana Department of Corrections at 83.4, Rutherford v. United States / Carter v. United States at 83.6, Chevron USA v. Plaquemines Parish at 84.6, Louisiana v. Callais / Robinson v. Callais at 84.8, and Trump v. Cook at 84.8.

These were not necessarily minor cases. Several were among the term’s more consequential decisions. Their lower scores reflect the way institutional complexity can weaken the connection between argument and final opinion.

Trump v. Cook is a good example. The case concerned the attempted removal of a Federal Reserve governor and came to the Court in stay-application posture. The argument touched on presidential removal authority, the meaning of “cause,” Federal Reserve independence, process, remedies, and the institutional position of the central bank. The decision engaged many of those themes, but because the Court was addressing interim relief rather than issuing an ordinary merits decision, the opinion did not map as cleanly onto the argument. The result was still high congruence in ordinary terms, but low relative to the rest of the dataset.

Chatrie v. United States, which scored 87.8, shows a different kind of cap. The case involved Fourth Amendment limits on access to Google Location History data. The argument ranged across property concepts, reasonable expectations of privacy, the third-party doctrine, anonymization, probable cause, particularity, and good faith. The Court held that acquiring the location data was a search, but remanded the warrant-validity questions. The opinion tracked the argument’s privacy architecture, but it left significant argued material unresolved. That kept it below the top tier.

Trump v. Slaughter, at 86.9, shows how doctrinal ambition can reduce congruence. The argument previewed the central themes: Article II, Humphrey’s Executor, the modern FTC, remedies, and the structure of independent agencies. But the final decision carried broad separation-of-powers consequences and generated meaningful separate-opinion divergence. It was connected to the argument, but it also did more than simply decide along the argument’s narrowest path.

The lower-scoring cases therefore do not show that oral argument was unimportant. They show that argument has different roles in different kinds of cases. In a clean statutory case, it may supply the rule. In a structural constitutional case, it may expose the competing frameworks later distributed across majority, concurrence, and dissent. In an emergency or stay case, it may shape the Court’s assessment of risk rather than produce a conventional merits rationale.

The term’s pattern: ordinary cases were more argument-faithful than institutionally charged ones

One of the clearest term-level patterns is the contrast between bounded legal disputes and institutionally charged cases.

Narrow statutory, procedural, and criminal-law cases tended to produce the cleanest argument-to-opinion translation. Abouammo, Hain Celestial, Barrett, Keathley, Bowe, Blanche v. Lau, and FCC v. AT&T / Verizon v. FCC all scored above 90 or close to it because the Court’s reasoning stayed close to the questions tested at argument.

By contrast, cases involving executive power, immigration policy, emergency relief, agency independence, race and election law, or digital privacy often had more complicated congruence profiles. These cases still generally scored high, but they more often involved novelty penalties, reserved issues, separate opinions, or posture effects.

This is one of the project’s more important findings. The cases most watched by the public are not always the cases where oral argument best predicts the final opinion. High-salience cases often require the Court to manage institutional risk, coalition maintenance, future litigation, and separate writings. That additional layer can make the opinion less directly congruent with the argument even when the major themes were previewed.

The justices: small differences, real style signals

Justice-level comparisons require caution. The average justice scores clustered tightly, and the differences should not be treated as a ranking of judicial quality. Still, the patterns are interesting.

Justice Jackson had the highest average justice-level congruence, at about 89.8. Justice Sotomayor followed at about 89.4, and Justice Kagan at about 89.0. Justice Kavanaugh averaged about 88.5. Justices Thomas, Roberts, Barrett, and Gorsuch clustered around 88.1 to 88.2. Justice Alito was somewhat lower, at about 87.3.

The spread from top to bottom is modest. The more useful interpretation is stylistic. Justice Jackson’s argument contributions often pressed administrability, consequences, and the real-world operation of legal rules. When those concerns appeared in opinions, her score rose. Justices Sotomayor and Kagan frequently framed cases around doctrinal fit, procedural consequences, and how proposed rules would operate beyond the immediate dispute. Chief Justice Roberts and Justice Kavanaugh often appeared as institutional narrowers, focusing on limiting principles and systemic consequences.

Justices Thomas and Gorsuch frequently raised historical or structural frames. Those questions sometimes appeared in majority opinions, but they also often surfaced in separate writings. That can complicate the score because the justice may be highly congruent with a concurrence even if the Court’s controlling rationale takes a different path. Justice Alito’s lower average appears partly connected to separate-opinion behavior and cases in which his argument path was preserved in dissent rather than adopted by the Court.

Role matters more than identity. Majority authors averaged about 91.4, while dissent authors averaged about 86.7. That is unsurprising. The majority author writes the Court’s adopted path. A dissent author may be faithful to argument, but if the Court rejects that path, the justice’s score will often be lower relative to the final controlling decision.

What the data says about reading oral argument → opinions

The most predictive moments in oral arguments were not always the sharpest exchanges. They were the recurring points: the distinction several justices kept testing, the limiting principle that survived multiple hypotheticals, the statutory phrase that kept returning, or the remedial consequence no side could avoid.

That was true in Abouammo, where the repeated focus on essential conduct forecast the venue holding. It was true in Keathley, where the argument’s pressure on rigid judicial-estoppel rules forecast the Court’s equitable totality approach. It was true in Chatrie, where the privacy concerns surrounding Location History forecast the search holding, even though the warrant questions were left for remand.

Oral argument did not predict everything. It was less predictive when the Court changed posture, avoided the merits, wrote broadly, fractured across opinions, or reserved important questions. But even in those cases, the argument often previewed the competing frameworks that later appeared in separate opinions.

That may be the best way to understand the Court’s use of argument. It is not simply a forum for changing minds. It is a public test of opinion language, doctrinal fit, limiting principles, and institutional consequences. In most cases this term, the test left a visible imprint on the final decision.

The dataset conveys that Supreme Court oral argument is generally strongly predictive of the content and structure of the Court’s opinions. Across 57 cases, the average congruence score was 88.55, and nearly nine in ten cases scored at least 85. The strongest driver was reasoning continuity, while the strongest negative factor was novelty.

That does not mean oral argument determines outcomes. It means something more precise: the Court’s written opinions usually remain connected to the adversarial process that preceded them.

Advocates might find interesting the importance of argument as a place to supply the Court with usable reasoning, not just a final chance to persuade. For court watchers, it suggests that the best clues are not always in the apparent vote count. They are in the questions the justices cannot let go.

The justices may not always reveal where they will land. But in most cases, they reveal the shape of the opinion to come.

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Trump v. Barbara, the birthright-citizenship case that dominated headlines this term, was emblematic of how the Court can be predictable in closely followed cases while still leaving room for surprises. Many observers, including me, expected the Court to reject the Trump administration’s order ending birthright citizenship. Based on oral argument, I predicted that Justices Thomas and Alito would dissent, and that Justice Barrett would be the pivotal vote. Thomas and Alito did dissent, Barrett joined the majority, and Justice Gorsuch also dissented. Justice Kavanaugh wrote separately, concurring in the judgment in part and dissenting in part, but he did not join the Thomas, Alito, or Gorsuch dissents.

The opinions reflect three divergent accounts of constitutional membership. The Roberts majority treated birth in the United States, coupled with subjection to U.S. sovereign authority, as enough to establish citizenship under the Fourteenth Amendment. The principal dissents focused on a more demanding concept of allegiance, especially for children of temporary visitors and unlawfully present parents. Justice Kavanaugh’s middle position would have upheld the injunction for the plaintiff class but avoided the majority’s broader constitutional holding as to every child of unlawfully or temporarily present parents.

The outcomes, however, are only part of the story. The justifications and rationales in the opinions lead to how the opinion outcomes were reached. The opinions also differ sharply in length, vocabulary, precedent use, and conceptual structure. The following breaks down these elements.

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Opinion Lengths

The length distribution shows how much of the case’s written law is in dissent. The Roberts majority was 7,801 words, or 13.8% of all authored-opinion words. The Thomas dissent alone was 27,477 words, or 48.5% of the authored-opinion total. Alito added another 11,594 words, or 20.5%, and Gorsuch added 820 words, or 1.4%. Together, the three dissents accounted for 39,891 words, approximately 70.5% of the authored text.

That imbalance affects how the decisions flow. The controlling opinion is relatively compact, while the dissents supply most of the historical excavation and counter-history. Thomas’s dissent was more than three-and-a-half times the length of the Roberts majority. The Jackson concurrence, at 6,323 words, was almost as long as the majority itself, while Kavanaugh’s separate opinion was much shorter at 2,603 words.

Concepts

The conceptual-emphasis graph groups terms into broader theory bundles rather than counting individual words in isolation. The sharpest difference is the territorial/common-law frame. In the Roberts majority, territorial/common-law terms accounted for 29.5% of coded concept mentions, with 76 mentions. In the dissents, the same bundle accounted for only 9.3%, with 133 mentions.

The dissents devoted a larger share of their coded vocabulary to domicile, exclusive allegiance, immigration status, and tribal-exception analogies. Domicile/exclusive-allegiance terms made up 35.8% of the dissent-side concept mix, with 512 mentions, compared with 31.0% and 80 mentions in the Roberts majority. Immigration-status terms were also more prominent in the dissents: 23.5% of coded dissent mentions, compared with 16.7% in the majority. Tribal-exception terms doubled as a share of the dissent-side mix, from 5.8% in the majority to 11.8% in the dissents.

Term Counts in Opinions Relative to Oral Arguments

The raw term counts show the vocabulary that dominated both the opinions and the argument. Across the authored opinions, citizen/citizenship appeared 1,021 times, far more than any other term family. Domicile-related terms were next at 397, followed by jurisdiction at 255, Indian/tribal terms at 201, temporary/sojourn at 179, and Fourteenth Amendment at 163.

The oral argument anticipated many of those same terms. Citizen/citizenship appeared 196 times at argument, domicile 136 times, allegiance 113 times, temporary/sojourn 92 times, Indian/tribal terms 91 times, and jurisdiction 80 times. Allegiance was especially argument-heavy: it appeared 113 times at argument and 132 times in the authored opinions, making it one of the terms most intensively tested at argument relative to its later written footprint.

The opinion-to-argument relationship graph also shows that the topics receiving the most attention at argument were generally the same topics that dominated the opinions. The line across the graph shows the average relationship between term use in the opinions relative to oral arguments across all terms shown in the graph. Several terms stand out. Citizen/citizenship sits at the top of both the argument and opinion counts, with 196 oral-argument mentions and 1,021 authored-opinion mentions. Domicile also carried over strongly from argument to opinion, with 136 argument mentions and 397 opinion mentions. By contrast, common law appeared 41 times at argument and 53 times in the opinions, reflecting a term that was central to the majority’s reasoning but did not dominate the overall written record in raw-count terms.

Term Use in Majority and Dissenting Opinions

The majority/dissent frequency comparison shows where the Roberts majority and the dissents diverged most after adjusting for opinion length. The Roberts majority used common-law terms at 59 mentions per 10,000 words, compared with only 1.8 per 10,000 words in the combined dissents. Jus soli (Latin for “right of the soil”) showed the same directional pattern: 9 per 10,000 words in the majority, compared with 0.5 in the dissents.

The dissents moved in the opposite direction on domicile and immigration-status language. Domicile-related terms appeared 363 times in the combined dissents, or 91 per 10,000 words, compared with 30 times in the Roberts majority, or 38.5 per 10,000 words. Indian/tribal terms appeared at 42.4 per 10,000 words in the dissents, compared with 19.2 in the majority. Unlawful/illegal terms appeared at 17.3 per 10,000 words in the dissents, compared with 5.1 in the majority. Foreign-power terms appeared at 16.8 per 10,000 words in the dissents, compared with 6.4 in the majority.

Allegiance is the notable counterexample. The Roberts majority used allegiance more intensively than the dissents: 45 mentions, or 57.7 per 10,000 words, compared with 82 dissent mentions, or 20.6 per 10,000 words. That supports the point that the majority did not avoid allegiance; it defined allegiance through birth, protection, and territorial jurisdiction rather than through parental domicile or exclusive national allegiance.

Precedent Use Across Opinions

The precedent-reference graph shows that Wong Kim Ark was the central authority across the case, but each opinion used it differently. The Roberts majority cited or referenced Wong Kim Ark 16 times, or 20.5 references per 10,000 words. Thomas referenced it 49 times, or 17.8 per 10,000 words. Alito referenced it 24 times, or 20.7 per 10,000 words. Kavanaugh’s separate opinion had the highest relative rate: 17 references in only 2,603 words, or 65.3 per 10,000 words.

The other precedents reveal the opinions’ different historical emphases. The Roberts majority relied heavily on Lynch v. Clarke, with 13 references, and Schooner Exchange, with 7. Thomas’s dissent cited Dred Scott 31 times and Lynch 25 times, while also leaning on Elk v. Wilkins 14 times. Jackson’s concurrence was more Reconstruction- and caste-focused, with 5 references to Dred Scott and 3 to Plessy. Gorsuch’s short dissent referenced Wong Kim Ark 3 times and Plessy once.

Majority-Dissent Relative Precedent Use

The majority/dissent precedent comparison sharpens the split in authority. Wong Kim Ark was almost evenly weighted after adjusting for opinion length: 20.5 references per 10,000 words in the Roberts majority and 19.1 in the combined Thomas, Alito, and Gorsuch dissents. That makes it the shared center of the case rather than a precedent owned by either side.

The divide appears in the supporting precedents. The Roberts majority referenced Lynch v. Clarke at 16.7 per 10,000 words, compared with 7.3 in the dissents. It referenced Schooner Exchange at 9 per 10,000 words, compared with 1.5 in the dissents. The majority also used Calvin’s Case at a higher relative rate, 5.1 per 10,000 words compared with 2 in the dissents. The dissents, meanwhile, more frequently invoked Plessy, with 11 references across the combined dissents and compared to none in the Roberts majority. Elk v. Wilkins was nearly even by rate, at 5.1 per 10,000 words in the majority and 5.0 in the dissents, reflecting its importance to both sides’ treatment of the tribal-citizenship exception.

Summing It Up

The textual split in Trump v. Barbara tracks the jurisprudential split. The Roberts majority is compact and rule-oriented, with its distinctive vocabulary clustered around common law, jus soli, territorial jurisdiction, and a version of allegiance grounded in sovereign protection. That pattern shows a majority opinion organized around continuity: the Citizenship Clause is treated as carrying forward a settled birth-on-soil principle, with narrow historical exceptions. The dissents are much longer and more reconstructive. Their language shifts heavily toward domicile, foreign allegiance, immigration status, and the tribal-citizenship exception, reflecting an effort to rebuild the doctrine around a more bounded conception of national membership.

The precedent patterns point in the same direction. Both sides return repeatedly to Wong Kim Ark, which functions as the shared center of gravity rather than as a one-sided authority. The disagreement lies in the surrounding architecture. The majority’s supporting citations emphasize common-law and territorial authorities such as Lynch, Schooner Exchange, and Calvin’s Case. The dissents give more weight to cases and examples that make jurisdiction look less automatic, especially tribal-membership authorities and Reconstruction-era counterpoints. In that sense, the opinions do not merely disagree over the result; they assemble different legal worlds from much of the same source material.

The majority’s result resolved the executive order, but the opinions reveal a deeper dispute over constitutional citizenship itself. The majority treated birthright citizenship as a stable rule inherited from common-law tradition, while the dissents treated it as a question still open to historical narrowing through allegiance, domicile, and parental legal status.

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The Supreme Court’s amicus docket is no longer peripheral to merits litigation as it was for much of the Court’s history. In major cases, amici often help frame the legal stakes, supply institutional context, and offer arguments that parties either cannot or do not emphasize. Larsen and Devins described this system as an “amicus machine”: a coordinated process in which Supreme Court specialists help decide which amici should appear, what arguments they should make, and how those arguments should be packaged for the Justices.

This article looks inside the amicus machine by focusing not on the amici as institutions, but on the lawyers who sign the briefs. In particular, it examines the role of former Supreme Court law clerks as counsel on merits-stage amicus briefs. These lawyers occupy a distinctive position in Supreme Court advocacy. They are often repeat players, they have direct experience with the Court’s internal working style, and they may carry a form of professional credibility that differs from ordinary appellate expertise.

Along somewhat similar lines, I previously looked at the success of former clerks as merits counsel. A subsequent study by political scientists Ryan Black and Ryan Owens used a larger sample to study former clerks’ influence over the justices.

The empirical question in this article is straightforward: do amicus briefs with former Supreme Court clerks look different from other merits amicus briefs? The answer, across the last two completed terms, is yes.

The dataset covers signed merits cases from OT2023 and OT2024. It includes 108 signed merits cases, 1,672 merits-stage amicus briefs, and 6,740 attorney rows extracted from the briefs themselves. Of those 1,672 amicus briefs, 324 included at least one former Supreme Court clerk. Put differently, roughly one in five merits-stage amicus briefs in signed cases had a former clerk on the brief.

The more striking finding is not simply that former clerks appear with some regularity. It is that their briefs are more likely to show up in the Court’s opinions and are cited much more frequently than briefs without a Supreme Court clerk listed as amicus counsel.

The winning-side results point in the same direction, though more modestly. The citation result is the cleaner and more important finding; the win result is best understood as a secondary association.

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The Supreme Court’s Tuesday and Thursday opinion releases produced what might be an end-of-Term preview, or it might be mere preparation for more dramatic opinions in the coming days. Across nine decisions, the Court issued 441 pages of slip opinions, roughly 125,000 signed-opinion words, and 26 separate signed writings. Seven of the nine decisions followed the classic 6-to-3 conservative/liberal pattern. Eight of the nine reversed or vacated the decision below.

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That is a high-density ideological cluster, even by modern Supreme Court standards. Across the nine-case Tuesday–Thursday release window, seven decisions moved along the familiar six-conservative / three-liberal axis. The two exceptions were analytically different. Pung v. Isabella County was a broad-coalition property/takings case: Justice Alito’s opinion was joined by the Chief Justice and Justices Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, and Jackson, with Justice Thomas joining except for one part and writing separately. Monsanto v. Durnell, by contrast, was not consensus; it was a cross-ideological 7–2 preemption decision in which Justices Sotomayor and Kagan joined Justice Kavanaugh’s majority, while Justices Gorsuch and Jackson dissented.

The timing matters as these cases arrived at what might have been the end of the Term if all the opinions had been ready. Instead, several of the most publicly followed cases remain pending. That makes this two-day cluster useful as a provisional benchmark. It shows the Court’s baseline before the final act: a highly cohesive conservative majority in immigration, firearms, foreign-affairs-adjacent liability, religious-remedies, and statutory-removal cases, with occasional cross-ideological movement in business and remedial-preemption disputes. It also provides support for some of Trump’s policies before there could very possibly be strong rebukes of the President’s policies including in Barbara (birthright citizenship) on Monday or later next week.

The Tuesday Opinions Made the Pattern Clear

Tuesday’s five opinions changed the interpretive frame for Thursday’s four. Taken alone, Thursday looked like a major conservative release day: gun rights, immigration, TPS, and pesticide preemption. But Tuesday showed that the pattern was already underway.

In Cisco Systems v. Doe, the Court sharply limited the Alien Tort Statute and rejected aiding-and-abetting liability under the Torture Victim Protection Act. The case was not only about corporate liability for alleged overseas human-rights abuses as it extends broader hostility to judicially implied causes of action, especially in areas touching foreign affairs. Barrett’s majority opinion framed the question through separation of powers; Sotomayor’s dissent framed it as a retreat from accountability for violations of international law.

In Exxon Mobil v. CIMEX, the Court sided with Exxon in a Helms-Burton Act dispute involving Cuban expropriated property and foreign sovereign immunity. Kavanaugh’s opinion treated the statute as abrogating immunity without requiring Congress to use a particular verbal formula. Kagan’s dissent, joined by Sotomayor and Jackson, emphasized the Foreign Sovereign Immunities Act and statutory clarity. The case fits the week’s pattern: conservative majority, liberal dissent, reversal, and a strong preference for a business plaintiff’s access to federal court.

In Landor v. Louisiana Department of Corrections, the lineup was ideologically familiar but the subject matter was more complicated. The plaintiff was a Rastafarian prisoner whose religious exercise had allegedly been violated, yet the conservative majority rejected individual-capacity damages under RLUIPA. Gorsuch’s opinion turned on Spending Clause consent and state sovereignty. Jackson’s dissent treated the case as disabling Congress’s chosen enforcement mechanism for religious liberty in prisons. That makes Landor especially useful for the article: it shows that religious liberty does not always predict a conservative vote when the remedial mechanism runs through damages, Spending Clause conditions, and state officials.

In Blanche v. Lau, the Court again split six to three in an immigration case. Thomas’s majority opinion rejected the Second Circuit’s requirement that a border officer have clear-and-convincing evidence before treating a returning lawful permanent resident as an applicant for admission based on suspected criminal conduct. Jackson’s dissent emphasized the distinctive legal status of lawful permanent residents and the risks of reducing procedural protection at the border. Alongside Thursday’s immigration decisions, Lau helps show a broader late-Term immigration posture: textual and executive-friendly readings prevailed, and the liberal Justices dissented from what they saw as diminished access, process, or protection.

The one Tuesday exception was Pung v. Isabella County. There, the Court produced a broad coalition in a tax-foreclosure takings case. Alito wrote for the Court, with Thomas and Sotomayor writing separately. The case matters because it prevents the article from overstating polarization. Even in this highly ideological release cluster, the Court could still produce consensus where the issue cut across the dominant national-politics map.

Thursday Added the Large Data Points

Thursday’s four cases intensified the story. Wolford v. Lopez was the largest opinion in the cluster, at 76 PDF pages and roughly 23,000 signed-opinion words. Its citation profile was distinctive: it was saturated with Bruen, Heller, McDonald, and historical-year references. That makes it the clear example of the post-Bruen Court’s methodological burden. The Court is forcing judges and advocates into a historical-analogue exercise that produces long opinions, competing histories, and unusually elaborate separate writings.

The immigration decisions moved more quickly but had significant institutional consequences. Mullin v. Al Otro Lado narrowed when asylum seekers can be treated as having “arrived” in the United States. Mullin v. Doe limited judicial review of Temporary Protected Status terminations and weakened the challengers’ equal-protection theory. Together with Blanche v. Lau, these cases create a three-case immigration arc: the conservative majority repeatedly adopted readings that limited access to judicial or statutory protection, while the liberal Justices emphasized practical consequences for vulnerable noncitizens.

Monsanto supplied the coalition outlier. The 7-2 lineup was unusual because Sotomayor and Kagan joined Kavanaugh’s preemption opinion, while Gorsuch joined Jackson’s dissent. That split is important because it complicates the story for the week. The Court’s week was overwhelmingly conservative in direction, but not mechanically partisan. In statutory preemption cases, cross-cutting concerns about federal uniformity, agency-approved labeling, state tort remedies, and access to court can still scramble the blocs.

What the Data Say About the Justices

Justice Alito was the central principal-opinion writer in the release window. He wrote Pung on Tuesday and then wrote Mullin v. Doe, Mullin v. Al Otro Lado, and Wolford on Thursday. That gave him four of the nine principal opinions. More importantly, those opinions covered some of the most ideologically salient territory: guns, asylum, TPS, and takings.

Justice Kavanaugh played a different role. He wrote both Exxon Mobil and Monsanto. One was a 6-3 conservative-liberal split; the other was a 7-2 cross-ideological preemption decision. That pairing captures Kavanaugh’s institutional position well. He is a reliable member of the conservative majority, but he is also one of the Justices most likely to write business, statutory, and administrability opinions that attract at least some liberal votes.

Justice Jackson was the leading dissenting voice by word count. Across the two release days, she authored roughly 34,000 words, more than any other Justice. That figure is striking because she wrote no principal majority opinion in the cluster. Instead she supplied alternative frameworks in ATS, RLUIPA, immigration, preemption, and Second Amendment cases.

Justice Sotomayor’s dissents were also notable, especially in Cisco and Al Otro Lado. She wrote the major dissenting account in cases involving international-law accountability and asylum access. Justice Kagan’s role was more mixed. She joined the liberal dissents in the ideological cases, wrote the principal dissent in Exxon, and joined the Kavanaugh majority in Monsanto. That made her less visibly oppositional than Jackson, but still central to the coalition map.

Justice Thomas remained the separate-writing signaler. He wrote separately in several cases and wrote the majority in Blanche v. Lau. His concurrences continue to matter because they often identify the more aggressive doctrinal route that future litigants may pursue.

Justice Gorsuch’s role was especially interesting. He wrote the conservative majority in Landor, rejecting a religious-rights damages claim under RLUIPA, but then joined Jackson’s dissent in Monsanto. That combination shows some of the limits of issue labels. Gorsuch’s votes are often highly conservative, but his statutory and remedial instincts can align with Jackson when the question involves how federal law affects private enforcement or legal accountability.

The Chief Justice was, per his usual, powerful but quiet in these important but non-landmark decisions. He was in the majority in all nine cases and wrote nothing separately. That is a familiar Roberts pattern: maximum institutional control with minimum visible friction.

Coalitions and Institutional Meaning

The Court’s conservative bloc was nearly perfect across the cluster. Roberts, Thomas, Alito, Kavanaugh, and Barrett were in the majority or controlling judgment in all nine cases. Gorsuch was in the majority in eight, breaking only in Monsanto. Sotomayor and Kagan were in the majority in Pung and Monsanto. Jackson was in the Court’s principal majority only in Pung, though she partially concurred in Cisco.

That distribution follows the institutional narrative: the Court is not merely conservative in headline outcomes since it is operationally conservative in its late-Term case processing as well. When the cases involve immigration, firearms, implied causes of action, Spending Clause remedies, or federal sovereign-immunity-adjacent disputes, the six Republican-appointed Justices are highly cohesive.

But the institution is not fully reducible to that divide. Pung shows that the Court can still decide technical property-remedy questions broadly. Monsanto shows that preemption can still build cross-ideological coalitions. And the volume of separate writing shows that (also per their usual) the Justices are not merely registering votes. They are actively constructing competing accounts of statutory interpretation, history, remedies, sovereignty, and institutional role.

Historical Comparison

Against the historical data, the late-June cluster stands out. In the 2022-2024 Jackson Court period, 6-3 outcomes accounted for roughly one quarter of the issue-vote observations. Only about half of those were classic six-conservative / three-liberal splits. In this nine-case cluster, seven cases fit that classic pattern.

The current cluster is compared with full-era baselines, not with equivalent late-June release windows. The historical bars show how often each Court-composition era produced its structurally relevant close ideological split across all cases in the dataset. The current bar shows how concentrated the June 23/25 release cluster was relative to those broader baselines

The word-count data adds a final layer. Across the nine cases, dissenting opinions accounted for more total words than majority opinions. That does not change who won. But it shows that the losing Justices were quite active in preserving alternative readings, warning about downstream consequences, and building materials for future courts, litigants, Congress, and public commentary.

The Provisional End-of-Term Thesis

If these nine decisions had closed the Term, the takeaway would be clear: a cohesive conservative Court used late June to reverse lower courts, narrow litigation pathways, strengthen gun rights, favor federal and business-side statutory defenses, and limit immigration-related relief. But the Term is not over. Several of the most publicly followed cases remain pending and very well might not follow the 6-3 ideological split formula. These remaining cases deal with birthright citizenship, transgender-athlete bans, independent-agency removal, Federal Reserve independence, mail-ballot deadlines, geofence warrants, and campaign-finance questions.

That makes the current data provisional but valuable. It tells us the Court’s posture before the final opinions arrive. The baseline is a strongly cohesive conservative majority, an increasingly prominent Jackson-led dissenting architecture, a Kavanaugh role in cross-ideological statutory cases, and a Court willing to produce broad consensus only when the issue does not map neatly onto national ideological conflict.

The remaining opinions will decide whether this cluster becomes the Term’s dominant story or merely its penultimate chapter.

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