As of the June renditions, which chronologically speaking is the mid-point of the SCOKY’s 2007 term, the SCOKY has rendered a total of 16 Opinions in cases to which the SCOKY previously granted discretionary review. Not a huge sample size, but we decided to crunch some numbers anyway. Here’s what we came up with:

The Court has rendered Opinions in 7 criminal and 9 civil cases.

Of the “DG” Opinions rendered to date, Justice Noble has authored the most (4). Justices Minton and Schroder have each authored 3 Opinions. Justices Cunningham and Scott have authored 2 Opinions apiece. Chief Justice Lambert and Justice McAnulty have each authored 1 Opinion.

In 13 (81.25%) of the Opinions, the Court reversed the Court of Appeals in whole or in part.

In 7 (43.75%) of the cases, less than all seven of the Justices decided the case. (In one of those 7, the case was nevertheless decided by a full Court that included 2 Special Justices.) The recent COA Justices were the most likely to recuse, with Justice Minton far in the lead with 5 recusals, and Justices McAnulty and Schroder each recusing in a single case. Justice Scott also recused on one occasion.

Given the recent media attention to the number of 5-4 decisions from the United States Supreme Court in its most-recent term, perhaps the most interesting thing about the Opinions rendered to date by the SCOKY is an apparent lack of divisiveness. In 12 (75%) of the Opinions, the participating Justices unanimously joined in a single Opinion. (4 cases were 6-0 rather than 7-0 because of a single Justice’s recusal). In another 2 cases, the participating Justices’ votes were unanimous as to the result reached. Thus, in 14 of the 16 cases (or 87.5%) of them, the SCOKY reached a unanimous result. There have been no 4-3 cases to this point.

In only 3 cases (2 criminal / 1 civil) did Justices write separate concurring or dissenting Opinions. Justice Scott wrote the two dissenting opinions (both of which appeared in criminal cases). Justice McAnulty (a civil case) and Justice Cunningham (a criminal case, and one of the ones in which Justice Scott filed a dissenting opinion) each filed one concurring opinion.

Perhaps it is a good thing that there was not a great deal of dissension. Karlos Brown v. Commonwealth of Kentucky (2005-SC-0078-DG), the only case to generate more than one separate opinion (and thus the leader of the pack in terms of divergent views), is a bit of a head-scratcher. The same four Justices (Lambert, C.J., Cunningham, Minton, Noble, J.J.) joined both the Opinion of the Court by Justice Noble and the separate concurring opinion by Justice Cunningham that plainly disagrees with a portion of the lead opinion’s reasoning. The concluding sentence of Justice Cunningham’s separate concurring opinion reads: “I concur in the result of the majority opinion herein, but would vary somewhat as to its reasoning and direction.” Logically, it is difficult to imagine how a Justice could both join an Opinion and also join a concurring opinion that is critical of its analysis. Imagining how four Justices could do so is even more difficult. If a majority of the Court agreed with the Cunningham view, why wasn’t it reflected in the Opinion of the Court? Given that only 6 Justices sat in this case, and there were two dissenting votes (McAnulty, Scott, J.J.), perhaps the ultimate vote distribution was a compromise position designed to avoid an unpalatable plurality opinion and ensure that the Court’s Opinion would have precedential value.

Of course, any conclusions about the unexpectedly high level of unanimity in DG Opinions should take into account the fact that it typically takes the SCOKY longer to render Opinions in cases where the Justices disagree as to the reasoning and/or the result than it does to render Opinions in cases where everyone agrees. Cases can languish for a month or two (or considerably longer) while a Justice finishes up a dissenting opinion. And occasionally a well-written dissenting opinion will end up with a “new” majority of votes, requiring a re-write of the lead Opinion followed sometimes by another month or two waiting for the “old” lead Opinion’s author to finish his/her “new” dissenting opinion. Given the fact that much of the Court’s present membership is new to the Court, and that the Opinions they have generated may still be in the “drafting and discussion” phase, SCOKYBLOG looks to see the percentage of 5-2 and 4-3 cases increase in the future.