UPDATES & ANALYSIS

A statistical review of the 2023-2024 Iowa Supreme Court term: The Court finds a new equilibrium

by Iowa Appeals Blog | August 22, 2024

[This article by Matthew A. McGuire, Spencer S. Cady, and Chris E. Slack was originally published in the August 2024 issue of The Iowa Lawyer magazine.]

The period between 2018 and 2022 was a period of great change for the Iowa Supreme Court, with five of the seven current justices joining the Court during that period. With the appointment of Justice David May, the 2022-2023 term possessed a highly distinctive statistical profile, with a sharp increase in unanimous opinions and corresponding decrease in fractured rulings. Many of the most distinctive statistical measurements from the prior term are again apparent during the 2023-2024 term, which is the second term featuring the current composition of the Court including Justice May.

Opinions by the numbers

The 2023-2024 term of the Iowa Supreme Court concluded on June 28, 2024. This term, the Court decided 103 cases by opinion, an increase from last term’s 95 cases and consistent with the Court’s historical average of deciding between 100 and 110 cases per term. Including concurring and dissenting opinions, the justices published a total of 138 opinions. The resulting ratio of approximately 1.34 opinions per decided case is similar to last term’s figure, yet far below the historical average of prior terms.

Similarly, the precipitous declines that we observed in divided (or non-unanimous) opinions during the 2022-2023 term continued in the 2023-2024 term. Of the 103 cases decided by opinion this term, only 20 were not unanimous. 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):

A chart measuring the number of separate opinions issued by the justices each year would look similar to the data shown above. This term, the justices issued 35 combined concurring and dissenting opinions in total. This figure is similar to the 30 concurring and dissenting opinions issued by the justices during the 2022-2023 term and a far cry from the average figure of 61 separate opinions issued during the five terms between 2017 and 2022.

This term, 33 cases came to the Court by way of direct appeal, while jurisdiction in 43 cases came to the Court by way of further review. The Court heard 10 cases on direct interlocutory appeal, eight cases on certiorari, four cases on discretionary review, and five attorney discipline cases. The 32% of cases decided on direct appeal represents the lowest proportion of such cases since at least the 2017-2018 term. Similarly, the number of appeals decided by a jurisdictional avenue other than an as-of-right appeal (interlocutory appeal, certiorari, or discretionary review) represents the highest such figure during that same time period.

The Court decided 43 criminal cases and 60 civil cases this term, which is consistent with the typical allocation of criminal and civil cases across the Court’s docket. The low proportion of criminal appeals decided during the 2022-2023 term (28 cases, representing 30% of the docket) reverted to the historical baseline (around 40%) in the 2023-2024 term.

Similarly, the number of recusals returned to historical standards after a substantial increase last term. This term featured only 14 total recusals, with no justice recusing themselves from more than four cases. Last term, by contrast, the justices recused themselves 56 times. And while the newly elevated Justice David May accounted for a majority (33) of those recusals, the remaining six justices recused themselves from nearly four cases on average last term. In contrast with the 2022-2023 term, this most recent term featured no cases split 3-3 and affirmed by operation of law.

Total opinion authorship

Justice McDonald authored the greatest number of opinions this term, authoring the most majority opinions (17) and the second-most separate opinions (8), while Justice McDermott authored the most separate opinions (10) and the fewest majority opinions (12). Interestingly, these two justices agreed with each other the least out of any combination of justices this term (albeit tied with a few other combinations). Justice May, who found himself in the majority more often than any other justice this term, authored the fewest overall opinions and no dissenting opinions.

Frequency of agreement

Last term, we observed that the data showed Chief Justice Christensen, Justice Waterman, and Justice Mansfield voting together frequently in non-unanimous cases—with the strong caveat that the vast majority of cases were decided unanimously. While Chief Justice Christensen and Justices Waterman, and Mansfield continue to show alignment, this term’s frequency-of-agreement data is considerably more heterogenous overall, with most of the justices agreeing with one another in divided cases between one-third and two-thirds of the time.

Of particular note, a new two-justice combination agreed most frequently in divided cases: Justices McDonald and May, agreed with one another in 90% of divided cases, and in 101 of 103 (98%) of all decided cases. Justices Oxley and McDermott agreed with the other justices between 35% and 70% of the time, continuing a trend of these two justices having a comparatively narrow range of agreement and disagreement with the other justices.

Justice May was the justice to most likely join the majority opinion this term, doing so in 85% of divided cases. Each of the remaining justices were in the majority between 60% and 75% of the time, reflecting the fact that the majority of divided opinions were not closely divided. When most of the divided cases split 6-1 or 5-2, as they did during the 2023-2024 term, most of the justices will find themselves in the majority most of the time—even when the Court is not unanimous.

Justice alignments in 4-3 opinions

The 2022-2023 term featured a high-proportion of closely divided opinions out of the total number of non-unanimous opinions (15 of 19). During the 2023-2024 term, the opposite was true: only 8 out of the 20 non-unanimous opinions were closely divided—where a difference in one justice’s vote could swing the outcome of the case. This measurement—the number of closely-divided cases compared to the overall number of divided cases—appears to be one that jumps around considerably from term to term, and would appear to have little predictive value as to forecasting justice alignments in future terms.

The most striking aspect of this term’s small sample size of closely divided cases is that half of these cases featured an identical alignment: Justices McDonald, Oxley, McDermott, and May in the majority, with Chief Justice Christensen and Justices Waterman and Mansfield in dissent. The remaining four cases did not exhibit any particular patterns of agreement.

Conclusion

For the most part, the second full term featuring the current composition of the Iowa Supreme Court bore a similar statistical profile to the term that came before. Specifically, for the second term in a row, we have noticed a sharp decline in divided or non-unanimous opinions compared to recent historical trends, a decline of similar magnitude in the number of separate opinions issued by the justices, and a reasonably frequent alignment in closely divided cases among Chief Justice Christensen and Justices Waterman and Mansfield. Although each Supreme Court term is a small sample size for drawing confident statistical conclusions, we believe these trends are likely to hold as long as the Court retains its current composition—creating a new status quo against which future versions of the Court will be compared.

Tags: Iowa Supreme Court 2023-24