The Michigan Supreme Court’s 2020-21 term ended on July 31. MCR 7.301(B).
August becomes a major holiday for court-data nerds: the time to see where the case data has settled. (SCOTUS doesn’t deserve all the attention!)
Measures and trends are sometimes tricky. It’s probably best to start with how I approach the effort.
First, I count by docket number—not just published opinions. Most times, only one docket number is assigned. Those are easy. Other times, a decision may resolve two or three docket numbers. Sometimes they share party names, other times not. My data counts for each docket number—like how trial courts report their caseload data.
Second, I include the cases when the Court issues an opinion without oral argument.
And finally, the Court often resolves an argued case with an order (not a precedential opinion). Because those matters earned an oral argument at the state’s high court (and could have ended in a precedential opinion), I count them!
Here’s what it means in the weeds:
The term began with four matters (five docket numbers) that were argued during the earlier 2019-20 term but were not decided before July 31, 2020. They were decided during this term and so that data is included.
My 2020-21 case list has 84 docket numbers. Much like the last term, this term also ended with three unresolved matters (four docket numbers). They were argued during this term but were not decided before July 31, 2021.
During the 2020-21 term, three matters were decided without argument. Two had arguments (for example, a certified question or from the Judicial Tenure Commission). 23 were argued with leave granted. And 56 were argued on the application (MOAA). [Math: 3 + 2 + 23 + 56 = 84 docket numbers]
Of those, 38 were resolved by opinion, 42 by non-precedential order, and 4 remain pending. [Math: 38 + 42 + 4 = 84]
[Fun fact: The Court and its clerks swam through over 47,000 pages of principal and amici briefs and appendixes for this term’s argued matters.]
So, how did 2020-21 shape up?
New filings continue to go down
The Clerk’s office publishes annual (calendar cycle) reports of filing activity.
Michigan’s high court new filings continue to fall.
The Court keeps taking longer to decide argued cases and issue written opinions
One could understandably assume that if new filings are easing up, then argued cases are being decided quicker. Not so.
The Court continues to take longer to decide cases that are (a) argued or (b) concluded by written opinion. These case age averages—between filing and issued order or opinion (in days)—are based on assigned docket numbers.
Curious about this case age trend, I dug into this term’s data to measure something new: What is the time difference between the oral argument date and issued order/opinion when there’s a dissent? 48.75% of this term’s decided 80 docket numbers included some form of dissent.
| Days from argument to a decision when there’s no dissent | 94 days |
| Days from argument to a decision when there’s dissent | 129 days |
The Court’s differences are growing
Two trends show growing differences: unanimous outcomes (with no concurrence or dissent) and voting relationships. [These are displayed as decimals, instead of percentages—a necessary compromise for this charting app.]
Unanimous outcome trends (based on docket numbers)
Voting relationships (based on docket numbers)
Another way to look at vote totals: majority, minority, equal division, and non-participation
Some—either when studying the MSC or other courts—make a good-faith effort to create categories of “voting blocs” to count the occurrences. I’m not suggesting that’s good or bad. I, however, have never found a comfortable way to do it. For example, how do you account for non-participation? When the bench membership changes? When a jurist issues a partial concur-dissent? When a jurist signs onto an opinion except for certain sections?
So here’s a different way of viewing the justices’ votes.
My counting qualifications: Again, these represent decided docket number counts. That is 80 for the 2020-21 term. Remember that Justices Markman and Welch each served different portions of the term—their individual totals will not equal 80. Combined, they will. The “majority” label means that a justice was completely with the majority, concurred only in the judgment, or concurred in part. The “minority” label means that a justice’s vote was a 100% dissent. Docket numbers that concluded in “equal division” votes earned their own label. And I show when a justice did not participate as noted in the corresponding order or opinion.
| Justice | Majority | Minority | Equal division | Non-participant | Docket #s |
| McCormack | 75 (93.75%) | 1 | 3 | 1 | 80 |
| Bernstein | 70 (87.5%) | 6 | 2 | 2 | 80 |
| Clement | 70 (87.5%) | 7 | 2 | 1 | 80 |
| Cavanagh | 67 (83.75%) | 6 | 3 | 4 | 80 |
| Viviano | 54 (67.5%) | 23 | 3 | 0 | 80 |
| Zahra | 45 (56.25%) | 31 | 3 | 1 | 80 |
| Welch start 1/21 | 40 | 3 | 1 | 16 | 60 |
| Markman end 12/20 | 11 | 8 | 1 | 0 | 20 |
A fun end-of-term note about footnoting style
I hinted at this last week, as the term was winding down and more opinions were being released.
Remembering that Justice Markman retired at the end of the calendar year and that Justice Welch assumed office in January (and did not participate in the released opinions/orders on cases argued pre-January), here is how many footnotes each Justice used in a published opinions or argued orders (not docket number) during the 2020-21 term:
| Justice Zahra | 617 |
| Justice Viviano | 462 |
| Justice Clement | 94 |
| Justice Markman | 87 |
| Justice Cavanagh | 56 |
| Chief Justice McCormack | 44 |
| Justice Welch | 40 |
| Justice Bernstein | 19 |
A fun end-of-term note about (cleaned up) style
Jack Metzler proposed a style to “clean up” clunky quotations in 2017. https://perma.cc/QU3R-Q43B Then-Justice McCormack was the first to use it in a Michigan Supreme Court opinion with People v Bruner, 501 Mich 220 (2018).
Fast-forward. Five justices used (cleaned up) during the 2020-21 term: Markman, McCormack, Viviano (three times), Clement, and Welch.
What counties did the 2020-21 cases come from?
Sometimes a case begins at the Court with a filing from Judicial Tenure Commission, it’s an original action, or the like. Usually, a case is the last stop in the appeals from a county circuit court. Here’s where the 2020-21 matters came from:
| 14 | Wayne |
| 12 | Oakland |
| 8 | Macomb |
| 7 | Court of Claims |
| 5 | Ingham |
| 4 | Saginaw |
| 3 | Court of Appeals |
| 3 | Bay |
| 3 | Grand Traverse |
| 2 | Monroe |
| 2 | Allegan |
| 2 | Delta |
| 2 | Eaton |
| 2 | Genesee |
| 2 | Muskegon |
| 2 | Washtenaw |
| 1 | Federal Court |
| 1 | Judicial Tenure Commission |
| 1 | Berrien |
| 1 | Huron |
| 1 | Ionia |
| 1 | Kalamazoo |
| 1 | Midland |
| 1 | St. Clair |
| 1 | Original Action |
| 1 | Worker Disability Comp Appeals Comm’n |
Looking ahead: 2021-22 term
2021-22 promises to be active. The Court has already ordered 66 files for argument—12 on leave granted, 54 as MOAAs. The average case age from their filing date to August 1, 2021 is already 289 days. That list will continue to grow as the court reviews more applications.
The new filings may be going down but the oral argument and opinion/order writing won’t be letting up. What will happen next cannot always be forecasted, but the data can help inform!
To the delight of court data nerds, David Lat shared something for us to keep in mind even after 2021-22: