UPDATES & ANALYSIS

A statistical review of the 2022-2023 Iowa Supreme Court term

by Iowa Appeals Blog | August 22, 2023

[This article by Matthew A. McGuire, Spencer S. Cady, and Chris E. Slack was originally published in the August 2023 issue of The Iowa Lawyer magazine.]

In our analysis of the 2020-2021 Iowa Supreme Court term, published in the August 2021 issue of the Iowa Lawyer, we examined the impact of the appointment of four new justices between 2018 and 2020 upon the Court’s statistical trends. Back then, in 2021, we concluded the data showed that “the predictable justice alignments of the last decade are a thing of the past.” During the Court’s 2022-2023 term, however, we began to question that assessment.

A statistical analysis of the 2022-23 term reveals certain emerging trends with respect to which justices are more likely to agree or disagree with one another. What’s more, the particular fault lines revealed in the data overlap with the particular outcomes in individual high-profile cases from this most recent term. However, the data available for analysis provides the smallest sample yet as a result of the 2022-23 terms’ most noteworthy statistical trend: This term featured the highest proportion of unanimous case outcomes, by far, in many years.

Opinions by the numbers

The 2022-2023 term of the Iowa Supreme Court concluded on June 30. This term, the Court decided 96 cases by opinion, a number that is about 10 percent lower than the recent historical average. Seventy-seven of these cases were decided unanimously, while only 19 cases were non-unanimous. Since the 2017-2018 term, about 35% of all appeals were decided on a divided (non-unanimous) opinion, and no fewer than 29% in any term during that period. This term, fewer than 20% of the cases decided by the Court did not command a unanimous Court. This is a striking decline from prior terms. The graph below shows the number of non-unanimous cases by term (measured on the left-hand axis) and the percentage of all cases each term that were not unanimous (measured on the right-hand axis):

In this article last summer, we highlighted a notable rise in separate opinions authored by the various justices notwithstanding a decline in the number of closely divided cases (i.e., 4-3, 4-2, 3-2). This term, the Court reversed course just as sharply, issuing just 30 concurring or dissenting opinions total compared to 73 last term. The justices issued, on average, 2.6 separate opinions per non-unanimous case, consistent with recent historical averages but a steep decline from last term. The graph below shows the number of separate opinions issued by term (measured on the left-hand axis) and also the average number of separate opinions per non-unanimous case by term (measured on the right-hand axis):

This term, 46 cases came to the Court by way of direct appeal, while jurisdiction in 33 cases came to the Court by way of further review. These two categories comprised 82% of the total cases. The court heard six cases on direct interlocutory appeal, three cases on discretionary review, two cases on certiorari, and six attorney discipline cases.

Only 28 criminal appeals were decided by the Court this term, in contrast with 68 civil appeals. This was a lower proportion of criminal appeals (30%) than is typical, as such cases typically comprise 40% or more of the Court’s docket.

With the addition of Justice David May, who previously served on the Iowa Court of Appeals before being elevated to the Iowa Supreme Court, the Court saw a large increase in the number of instances in which one or more justices recused themselves from consideration of particular appeals. This term saw 56 recusals, up from 18 total recusals the previous term and seven during the 2020-21 term. Even subtracting Justice May’s 33 recusals, the combined 23 recusals from the remaining justices would on its own represent a significant increase. These recusals had a profound impact upon case outcomes. This term featured 15 closely divided opinions, meaning that one justice’s vote, if switched, could have changed the outcome of the case. Of those 15 closely divided opinions, only five featured all seven justices participating. And four cases—including cases involving high-profile issues relating to COVID-19 emergency orders and abortion rights—were split 3 to 3 (at least in part), resulting in no controlling opinion from a majority of the Court.

Total opinion authorship

As noted above, the justices issued fewer separate opinions this term compared to last term. Whereas last term, six justices issued more than 20 opinions and two justices (Appel and McDermott) exceeded 30, this term only one justice (Mansfield) issued more than 20 opinions. One factor leading to fewer written opinions this term was that a handful of cases were decided 3-3 and were therefore affirmed by operation of law without a controlling opinion. These cases account for the discrepancy between the total number of majority opinions plus per curiam opinions (93), and the number of appeals resolved by the Court (96).

Frequency of agreement

As we observed two years ago, the Court under Chief Justice Susan Christensen has thus far been characterized by the lack of predictable agreement patterns between justices in divided, or non-unanimous, cases. For the last few terms, most pairs of justices have agreed and disagreed with one another between 30-70% of the time. The coalitions comprising a majority have often changed from case to case. This term, a different pattern emerged. On one side, Chief Justice Christensen and Justices Waterman and Mansfield tended to agree with one another and disagree with the other justices; and on the other side, Justices McDonald, May, and Oxley tended to agree with one another.

It is possible to overstate the significance of this data. Any individual term provides a small sample of divided opinions to analyze, and as noted above, the denominator of 19 non-unanimous cases from the 2022-2023 term was particularly small. Here is how the same frequency-of-agreement data would look if all cases, and not merely non-unanimous cases, were taken into consideration:

Justice alignments in 4-3 opinions

The 2022-2023 term featured 15 closely divided opinions out of the 19 non-unanimous cases. However, because this sub-set of cases featured many recusals—ten in total, of which Justice May accounted for six—and four cases divided 3-3 in whole or in part, it is difficult to draw firm conclusions from this data.

The most common majority alignment in closely divided cases was Chief Justice Christensen, joined by Justices Waterman, Mansfield, and McDermott, in four cases. The second most common majority alignment comprised Justices McDonald, Oxley, McDermott, and May, in two cases. This measure, however, tends to be fairly “noisy” and during the Court under Chief Justice Christensen there has been little consistency as to the most common 4-3 majority grouping from term to term. Data showing the most common three-justice groupings in closely divided cases may be more useful. This data shows Justice McDermott as the one justice not present in the two most common groups of three, and therefore most likely serving as the “swing” vote in closely divided cases this term.

Conclusion

One who has followed the outcomes in the Iowa Supreme Court’s most news-making cases from this most recent term might recognize the common alignments in the table above. For example, in Planned Parenthood of the Heartland v. Reynolds, Case No. 22-2036, the Court split 3-3, with the Chief Justice and Justices Waterman and Mansfield on one side, and Justices McDonald, McDermott, and May on the other. In two cases concerning challenges to COVID-19 procedures implemented by the judicial branch, State v. Brimmer, Case No. 21-0774, Dickey v. Hoff, Case No. 21-0859, the Court split along similar lines. Brimmer was decided 4-3, with Justices McDonald, Oxley, McDermott, and May in the majority, and the Chief Justice and Justices Waterman and Mansfield in dissent. Dickey featured another 3-3 split, with Justices McDonald, Oxley, and May on one side, and the Chief Justice and Justices Waterman and Mansfield on the other.

However, it may be another high-profile opinion, in the appeal of Burnett v. State, Case No. 22-1010, that is most characteristic of the current Court. In that case, the Supreme Court addressed a highly contentious legal issue—whether the Iowa Constitution provides a private right of action against state officials for damages resulting from violations of constitutional rights—and overruled their 2017 opinion in Godfrey v. State, Case No. No. 15–0695. In Burnett, as in many cases this term, the opinion of then Court was unanimous.

Tags: Iowa Supreme Court 2022-23