Ed’s Note: This article first appeared on the Juris Lab, a “data analysis is the law” forum.
For the past week, the University of Chicago William Baude joined the “Podcast “Expert Opinion” talk about some of the lesser-known aspects of Supreme Court practice. While talkinghe walked past the lesser-known topics and straight into the dark: DIGs.
DIG stands for “dismissed as improvised,” which is a formal way for the Supreme Court to say that it wishes it had never granted certiorari in one case. Instead of dealing with the merits, the court simply dismisses the case from its file and restores the lower court’s order and position. It is effectively a SCOTUS Ctrl + Z.
This mechanism remains obscure as it is only rarely called. An article by Prof. Michael Solimine and Rafael Gely found that the Court DIGged 155 cases from 1954 to 2004, which is approximately 3.04 cases per term.
Since the Solimine and Gely record ends right at the start of Roberts Court, I thought I’d put together a similar record for Roberts Court and see if anything has changed. The compilation is attached at the end of this article. Some summary numbers are immediately below.
Roberts Court (2005-present)
DIGs per term
DIGs per 100 opinions issued
Majority only DIG%
% of DIGs with an opinion
Note: For the statistics per term and per 100 opinions, I have only considered DIGs from complete terms. This removed a single DIG from the current runtime. I determined the number of opinions given by consulting the incomparable Supreme Court database and filtering out cases that have been dismissed from the minutes of the Court of Justice or resolved without commenting on the decision of the Lower Court. I counted for the vote quota San Francisco v. Sheehan as ½ case, as the court split on whether to ask both questions or just one.
Number of DIGs: While the DIGs per term have decreased dramatically, this number is mainly reflected the shrinking record of the court. The number of DIGs per 100 opinions submitted has also decreased, but not nearly as much – from 2.33 to 2.12 or about 9%.
I would expect the number of DIGs to continue to decrease as the court document decreases in size. The theory would be that the court would have more time to investigate a case for vehicle problems before issuing a certificate.
And maybe that actually happened, just not at the beginning of Roberts Court. Swedish rock lover and harbingers of fearsome Manimale John Elwood Has Well documented procedural changes at the Court of Justice that give him more time to investigate cases for problems that could lead to a later DIG. As he notes, these procedural changes became most evident from the 2014 term.
If we use the term 2014 as a dividing line, we see a stark contrast in the number of DIGs. Prior to the 2014 DIGged term, the Roberts Court had 16 cases, or approximately 2.38 cases per 100 DIGged opinions submitted. This number per 100 comments submitted is almost identical to the previous 51 terms. Since the start of the 2014 term, the Court has examined 8 cases, or around 1.87 cases per 100 opinions. This corresponds to a decrease in DIGs of 21.4% since the beginning of the 2014 semester.
And that decline is probably an understatement. Of the 8 cases that have been DIGged since the 2014 term in office, at least 4 have been DIGged due to circumstances that occurred after the certificate was issued or due to a party trying to change their theory of the case – developments beyond control of the Court of Justice. Only 3 of the 16 cases before 2014 can be described in this way.
The Court’s procedural changes to give it more time to check for vehicle problems appear to reduce the frequency of DIGs.
Composition of the DIGs: Another big difference is how often the court is unanimous in excavating a case. Roberts Court agrees it will dig a case 78% of the time, which is 24 percentage points better than the previous 50 years. The frequency with which DIGs by mere majority DIGs (e.g. if a single vote in the other direction changes the outcome) is roughly unchanged (11% to 16%). In addition, the Court of Justice writes statements less frequently in DIGged cases. All of this suggests that the Roberts Court members are using the DIG less aggressively as a strategic tool and instead viewing it as an institutional tool.
What do I mean by strategic and institutional instrument?
By strategic, I mean that the judges at DIG vote to get the end result they prefer in a particular case or on a particular legal issue. An example of a strategic DIG could be Boyer v. Louisianawhere the alignment of 5 to 4 votes roughly reflects what a predicted vote would look like.
By institutional, I mean that judges vote with DIG (1) in order to jointly benefit the court, or (2) in a way that puts collective goals above individual judges’ preferences. An example of institutional DIGs would be a line from cases where the court unearthed cases after the petitioners changed their theory of the case. By digging up these cases, the Court is signaling to the sophisticated Bar Association of the Supreme Court that it will not tolerate bait-and-switch tactics to fuel a client’s interest. The members of the Bar – whose currency at the Court depends on being honest brokers – then effectively self-monitor, so the Court continues to rely on the Bar of the Supreme Court for expert assistance in resolving cases.
Another example – according to my guess – for an institutional DIG is First American Financial Corp. against Edwards. Edwards is one of the most confusing DIGs in history. The case was a predecessor of Spokeo, Inc. v Robinsand poses a nearly identical persistent problem under Article III. As it was a booth, potential vehicle problems – latent problems preventing the Court of Justice from answering the question posed – would be possible but drastically reduced. What makes the DIG so mysterious is that the court DIGged the case without comment on the last day of the tenure, 213 days after the hearing. This delay is well above the median (55 days) and the average time (58.6 days) between an oral hearing and a DIG. (The excessive delay is not just explained by Edwards‘early date of argument; 40% of Roberts Court DIGs after the dispute are cases that were discussed between October and November.) And it’s absurd compared to other DIGs which often appear within a few weeks of the dispute.
Here we have made pure guesswork: if I were a bettor, I would bet this draft for opinions Edwards circulated through chambers, but no majority could band together around a standard. And you can understand why, given that, it is difficult to find a standard to band together Spokeo created a home industry that explains what Spokeo means. Instead of giving a broken plurality opinion about the most basic responsibility requirement (This would force the lower courts to find out which opinion controlled their analysis) I suspect the court has just decided to look into the matter. If my guess is correct then the judges are in Edwards decided that marginalizing the case would help fulfill its role of speaking collectively and coherently about the law, while providing an opinion of merit would undermine that institutional role. Although there are times when the Court of Justice may need to deliver multiple opinions, I consider that to be a generally positive development.
Despite all of these analyzes, we can all agree that this is truly extraordinary I got through this whole post without a single DIG pun.
Read more in the Juris Lab …
Bryan Gividen is a Senior Associate at Vinson & Elkins LLP in Dallas, where he focuses on litigation and appeals against shareholders and mergers. He studied economics at Brigham Young University before graduating summa cum laude from the William & Mary School of Law. The views expressed here are Bryan’s sole and do not reflect the views of any of his employers or clients, past or present. Follow Bryan on Twitter @BryanGividen.