Utah’s Supreme Court, where unanimity is the rule

Non-unanimous rulings from the Utah Supreme Court are very rare

The five Justices serving on Utah’s Supreme Court are the final word when it comes to interpreting Utah law and Utah’s Constitution, yet they labor mostly in obscurity, without attracting the sort of public attention that the U.S. Supreme Court attracts. Perhaps that’s because so many of the Utah Court’s rulings are issued unanimously, without the narrow-majority drama that we see in the U.S. Court. In fact, the Utah Court went through a period where non-unanimous decisions were rare–a period that has only recently begun to change.

Composition of the Court

Utah’s Supreme Court consists of five Justices. Utah employs a merit-based nominating system intended to favor expertise over ideology. Still, I’ll start with a simple graph showing how the composition of the Court has changed during the period I’ll be looking at (1997 through 2012). From 1997 through March 2000, four Justices were Democratic appointees (i.e. appointed by a Democratic governor, regardless of the Justice’s own partisanship); from March 2000 through May 2003, only two justices were Democratic appointees; since May 2003, only one Democratic appointee remained on the Court.

Partisan composition of Utah Supreme Court justices

Number of Utah Supreme Court justices appointed by governors of each party, by year

How much dissent is there?

Based on the previous figure, you might expect that 2000-2003 was a tumultuous time for the Court, with many narrowly divided rulings. You would be wrong. The chart below shows the percentage of rulings each year that were issued with anything less than unanimity (i.e. a 4-1 or 3-2 ruling). In 1997 and 1998, 20-25% of rulings triggered at least one dissent. Divided rulings fell sharply from 2000 to 2002 and were rare from 2003 through 2006.

Frequency of non-unanimous decisions by the Utah Supreme Court

Frequency of non-unanimous decisions by the Utah Supreme Court, by year

Even today, despite a modest rise in divided rulings, they still remain relatively rare. The Court hears only 80-100 cases in a typical year. In practical terms, that means we’re looking at only a handful of non-unanimous rulings each year, typically fewer than 10. Reporters take note: Non-unanimous rulings from the Utah Supreme Court are very rare–so rare that they probably deserve some media attention.

Which Justices dissent most often?

This leads us to a natural question: Which Justices are most willing to disagree with the majority? Ten Justices served at one point or another from 1997 through 2012. In the table below, I’ve listed how frequently each Justice dissents from the majority. (The Justices are sorted by the year they left the Court; if they are still on the Court, they are sorted by the year they joined it.) Daniel Stewart and Thomas Lee have been most willing to disagree with the majority’s opinion, although even they joined the majority roughly 90% of the time.

Justice Gov’s party Years Dissents
D. Stewart D 1979-2000 11%
M. Zimmerman D 1984-2000 5%
R. Howe D 1980-2003 4%
L. Russon R 1994-2003 4%
C. Durham D 1982- 4%
M. Wilkins R 2000-2010 4%
M. Durrant R 2000- 2%
J. Parrish R 2003- 1%
R. Nehring R 2003- 2%
T. Lee R 2010- 10%

Which Justices write the most opinions?

Every Court ruling requires a written majority opinion. (At their option, Justices can also release their own written concurring or dissenting opinion.) With 5 Justices on the Court, we would expect each Justice to write roughly 20% of the Court’s majority opinions, and that is roughly what we see. The only Justices outside the 18-22% range are Stewart (17%) and Lee (27%). (Side point: Given that Lee dissents relatively frequently, it is remarkable that he is also the most common author of majority opinions. His willingness to dissent has apparently not alienated his colleagues.)

What’s more interesting, though, is to see which Justices take the time to write concurring or dissenting opinions laying out their own thinking separately from the official majority opinion. Although every ruling needs a written majority opinion, nothing compels a Justice to release or concurring or dissenting opinion other than a desire to formally articulate his or her thoughts on a case. Thomas Lee is prolific in this respect. Whereas some justices release a concurring or dissenting opinion in only a handful of cases that they hear, Lee releases them in 16% of the cases he hears. When we combine his concurring and dissenting opinions with his majority opinions, we see that he releases a written opinion of one type or another in 43% of the cases he hears—almost half. Lee’s closest competition in the period under examination is Michael Zimmerman, who released written opinions one-third of the time.

The table below gives the data.1

Justice Majority opinion Other opinion Any opinion
Stewart 17% 10% 27%
Zimmerman 22% 11% 33%
Howe 22% 7% 29%
Russon 21% 5% 26%
Durham 21% 6% 26%
Wilkins 20% 5% 24%
Durrant 23% 2% 25%
Parrish 21% 0% 22%
Nehring 22% 3% 23%
Lee 27% 16% 43%

About the data

You can find all the Utah Supreme Court’s rulings since 1997 online. Over the winter, my research assistant Luke Bell, presently a CSED Student Research Fellow, combed through all the rulings from 1997-2012 and recorded information about them into a spreadsheet. It came out to over 1400 rulings. Occasionally, a Justice recuses or is absent and a lower court judge sits instead. I omit the small percentage of rulings where a sitting judge wrote an opinion–any opinion–but I keep rulings where a sitting judge joined without writing an opinion.

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About Adam Brown

Adam Brown is an associate professor of political science at Brigham Young University and a research fellow with the Center for the Study of Elections and Democracy. You can learn more about him at his website.
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