Article by: Aleeza Furman, Litigation Reporter, Legal Intelligencer/Law.com
February 15, 2024

Pennsylvania’s justices do not shy away from disagreement, data collected by The Legal Intelligencer shows.

An analysis of the Pennsylvania Supreme Court’s 2023 rulings revealed that complete unanimity was rare among the justices, with concurring and/or dissenting opinions outnumbering majority opinions.

But appellate experts said the data suggests that, despite the court’s frequent splits, the justices broadly based their decisions on the specific cases and legal issues before them.

“These numbers overall are positive in the sense that they show that these justices are just doing what jurists do, and that’s decide cases based on facts and law, not based on how their colleagues are voting,” said John Hare, chair of Marshall Dennehey’s appellate advocacy practice.

“All of these justices also feel that it’s important to explain how they see the law,” Hare added. “More important than simply going along to get along.”

Less than a quarter of the 55 high court majority opinions The Legal analyzed—13 to be exact—came down without a concurring or dissenting opinion.

Though not all of the separate opinions represented a split in view, such as Justice Kevin Dougherty’s enthusiastic concurrence in which he “[wrote] only to amplify the majority’s message” in an election dispute ruling, the justices penned a total of 68 concurring and/or dissenting opinions in 2023.

That level of disagreement is not a given for state supreme courts.

New Jersey’s high court, for example, went a year without issuing a dissenting opinion, according to a July report from the New Jersey Law Journal. And the California Supreme Court continued a track record of unified rulings by issuing only three nonunanimous opinions in 2023, the Recorder reported.

“Pennsylvania is different because we have a lot of strong-minded justices who think it’s important, or really more important than consensus to delve into the nuances of the law,” Hare said.

 

Hare said a high volume of writing from the high court, even when it does not reflect a unified view, helps to develop a more robust body of common law.

The most prolific writer on Pennsylvania’s high court by a comfortable margin was Justice David Wecht. He authored 30 opinions in total in 2023, 18 of which were concurrences or dissents.

Chief Justice Debra Todd entered the fewest total opinions (15), penning only five concurrences or dissents.

Tracking Alignment

While the justices often disagreed, they did not appear to follow any clear alliances, experts observed. That includes along the most closely examined point of potential division—political affiliation.

Some agreements correlated to party—for instance, Justice Sallie Mundy most frequently joined opinions authored by fellow Republican Justice Kevin Brobson, and Wecht amassed far more “joins” from Democratic justices than from Republicans.

But party was far from a guarantee of alignment—for instance, Dougherty, a Democrat, frequently joined opinions authored by Mundy and Brobson, and Brobson most frequently joined opinions authored by Todd.

The data supports the notion that the justices are not simply deciding cases along partisan lines,” Maureen McBride, co-chair of Lamb McErlane’s appellate department said in an email.  “The fact that justices from different judicial philosophies are willing to collaborate and reach a decision based on a shared view of legal principles is a positive—it helps to promote public confidence in the judiciary and to reinforce the credibility of decisions that are made,” she said.

Craig Green, a professor of law and government at Temple University School of Law, also noted the lack of apparent partisanship in the distribution of the justices’ agreements.

“It looks like a judicial institution that is relatively free of faction and appears to be … deciding the commonwealth’s business in an institutionally sensitive kind of way,” he said.

Green said it is possible that an analysis of the court’s rulings on hot-button issues like voting or abortion could reveal a more politically aligned division, but if those divisions exist they are blurred when combined with the rest of the court’s varied caseload.

Green said high-stakes, divisive issues can put a strain on institutions, and when those issues arise they are best handled in a court that functions well when things are business as usual.

He said the way the justices are working now is a good sign for the legal community, which relies on a functional Supreme Court.

Green added: “They’re able to work together in various coalitions, with various points of agreement and disagreement that seem, at least presumptively, about law.”

Read the article online on Law.com.