July 23, 2025 – Prevailing wisdom wouldn’t expect agreement at the Supreme Court, but in the last term, justices in Washington agreed about 40% of the time, and the Wisconsin Supreme Court did so in 36% of its cases.

Analysis of U.S. Supreme Court decisions shows unanimity is the “most frequent” result^[1] – more than a third of the time – dating back to when Chief Justice Warren E. Burger led the Supreme Court from 1970 to 1985 (see table).^[2]

Marquette University History Professor Alan Ball’s SCOWstats shows eight opinions out of 22, or 36%, in this Wisconsin Supreme Court term were unanimous.

In Wisconsin, where high-cost and abrasive supreme court elections have become the norm, this term’s percentages of dissent-free cases aren’t unique. SCOWstats shows percentages of unanimous case opinions for the 2023-24 term at 29% (4 out of 14); the 2022-23 term at 36% (16 out of 45); and the 2021-22 term at 33% (17 out of 52).^[3]

Examples of Unanimity

Four highly political Wisconsin disputes, addressing separation-of-powers and union issues, were unanimous: Wisconsin Elections Commission v. LeMahieu, 2025 WI 4; Kaul v. Wisconsin State Legislature, 2025 WI 23; Wisconsin State Legislature v. Wisconsin Department of Public Instruction, 2025 WI 27; and Service Employees International Union Healthcare Wisconsin (SEIU) v. Wisconsin Employment Relations Commission, 2025 WI 29.

Of the 63 completed cases listed on SCOTUSblog for the U.S. Supreme Court’s 2024 Term, 29 were unanimous decisions.^[4] Some 9-0 decisions are perfunctory, including two cases dismissed as improvidently granted and two decided without oral argument.

Adam Liptak, Supreme Court correspondent for the New York Times, tallied the amount as 22 cases orally argued and disposed by signed opinions, or about 40%.

Many of those decisions draw only the specialist’s interest, but hot-button issues also yielded consensus.

Plaintiffs alleging reverse discrimination, Ames v. Ohio Department of Youth Services, 145 S. Ct. 1540, and student disability accommodations, A.J.T. v. Osseo Area Schools, Independent School District No. 279, 145 S. Ct. 1647, found a unanimous court that equalized all plaintiffs.

Closer to home, Catholic Charities Bureau Inc. v. Wisconsin Labor and Industry Review Commission, 145 S. Ct.1583, resulted in a unanimous decision that Catholic Charities, based in Superior, qualified for the religious exemption to state unemployment compensation tax.

Patterns of Consensus

A unanimous decision can be the only opinion of the court, as it was in 11 of the 29 U.S. Supreme Court decisions listed in SCOTUSblog and for two of the eight unanimous Wisconsin Supreme Court decisions.

While the reasons vary by justice, patterns emerge in writing concurrences.

A justice may signal other legal issues, elicited by the case, worthwhile to review when an appropriate dispute offers the chance.

Justice Clarence Thomas’s concurrence did that in Ames, where the Court assumed without deciding that the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework applied.

In the appropriate case, he believed that the Court should reverse McDonnell Douglas as a judge-made doctrine that has no statutory justification.

A concurrence offers the opportunity to explain an additional detail, as Justice Ketanji Brown Jackson did in her Catholic Charities concurrence.

She clarified that the Federal Unemployment Tax Act (FUTA) “does not distinguish between charitable organizations based on their engagement in proselytization or the services to religious adherents.”

The phrase “operated primarily for religious purposes” refers “to the organization’s function, not its inspiration,” Justice Jackson wrote.

Justice Thomas used his Catholic Charities concurrence to analyze the case’s other issue – that the Wisconsin Supreme Court erred in concluding “the relevant ‘organization’ is Catholic Charities and each of it subentities, not the broader Catholic Diocese of Superior of which it’s a part.”

“The First Amendment’s guarantee of church autonomy gives religious institutions the right to define their internal governance structures without state interference,” Justice Thomas wrote. “Religious institutions may create different corporate entities to help manage their temporary affairs.”

A concurrence can provide additional information that puts the case in perspective.

In Barnes v. Felix, 145 S. Ct. 1353, which reversed the Fifth Circuit’s “moment-of-threat rule” as contrary to the Fourth Amendment, Justice Brett M. Kavanaugh wrote a concurrence joined by Justice Thomas, Justice Samuel A. Alito, Jr., and Justice Amy Coney Barrett “to add a few points about the dangers of traffic stops for police officers.”

Wisconsin Examples

Justice Jill J. Karofsky used her concurrence in State v. Molde, 2025 WI 21, for a similar purpose. Molde held that an expert witness’s answer about the frequency of false reports of child sexual abuse didn’t violate the State v. Haseltine rule against vouching.

“I write separately to elevate the voice of Lauren, the victim in this case whose courage and perseverance allowed her to overcome the ‘herculean task of reporting sexual abuse,’” Justice Karofsky wrote.

Using a pseudonym that humanized the victim, Justice Karofsky then challenged three “damaging and victim-blaming misperceptions” in child sexual abuse cases.

Sometimes a concurrence comes to the same conclusion but in a different way. Everyone agreed with termination of parental rights in State v. H.C., 2025 WI 20.

Chief Justice Ann Walsh Bradley, joined by Justice Rebecca Frank Dallet, believed that a specific burden of proof applied.

In State v. McAdory, 2025 WI 30, everyone agreed to affirm the court of appeals. The circuit court ruled, after remand on the operating while intoxicated charge, that it may reinstate a related charge dismissed at sentencing instead of holding a new trial.

Justice Annette Kingsland Ziegler concurred in the judgment, joined by Justice Rebecca Grassl Bradley. They came “to this conclusion for reasons quite different” than the opinion of the court. She wrote in concurrence how she thought the majority opinion should have been written.

Concurrences can sound like dissents. In Wisconsin Elections Commission, everyone agreed that the holdover appointee remained in office under State ex rel. Kaul v. Prehn, 2022 WI 50. The concurrences refought Prehn.

And in SEIU, while everyone agreed that Act 10 ended unionization with the University of Wisconsin Hospitals and Clinics Authority, they disputed over statutory interpretation. Justice Rebecca Frank Dallet, joined by Chief Justice Ann Walsh Bradley and Justice Jill J. Karofsky and Justice Janet C. Protasiewicz, argued in concurrence for a more “holistic” means of statutory interpretation – that Justice Rebecca Grassl Bradley, joined by Justice Annette Kingsland Ziegler, vigorously disagreed with in her concurrence.

Roberts’ Formula

Academic commentary offers various explanations for unanimity. If the reviewing court can narrow the issues, the panel may more likely agree.

Chief Justice John Roberts, who arrived at the U.S. Supreme Court promoting more unanimous decisions, uses narrow holdings as his formula to build consensus. Concurrences allow justices to present specific legal theories.^[5]

That’s true even at the Wisconsin Court of Appeals, a “very high-volume court,” said Judge Thomas M. Hruz, at the State Bar’s Annual Meeting & Conference on the topic of appellate briefs.

“We decide cases on the narrowest grounds we can,” Hruz said. “And if … the three of us … disagree on a couple of issues, but we agree on one of them and it’s dispositive, that’s [how] we’re going to decide this” case.

Similarly, a case that resolves only technical matters improves the chances for agreement. In the first five terms of the Rehnquist Court (1986-90), “44% of routine cases were unanimous.”^[6]

These cases may fall into many buckets. They can be “disciplining or correcting lower courts” such as “correct[ing] a clearly unacceptable lower court decision,”^[7] “technical matters,”^[8] non-ideological,^[9] reversals or “error correction,”^[10] or even “reversing the Ninth Circuit.”^[11]

The less time spent on a case, which may also indicate a narrow issue, is “one of the most powerful indicators of unanimity.” When justices in the early Rehnquist Court spent less than three months between oral argument and decision date, unanimity happened 55% of the time.^[12]

In contrast, civil rights cases often necessitate a potentially divisive, case-by-case factual analysis. They’re also laden with ideological positions.^[13]

Acting Tough

Another explanation occurs when a Supreme Court must act tough.

When reviewing statutes or presidential actions, “it is necessary to rule assertively” to ensure the decisions “are respected by Congress and the President” – each of which has power to curtail the court or, perhaps “refuse to implement a judicial decision.”^[14]

In the first five years of the Rehnquist Court, such decisions were unanimous 47% of the time.^[15]

Although one study claimed that precedent-reversing decisions are rarely unanimous, making Brown v. Board of Education, 347 U.S. 483 (1954), “a famous example of such unanimity,”^[16] another commentator used it as proof that the U.S. Supreme Court unanimously decides critical issues.

In Brown, the Court had to be unified in reversing longstanding precedent authorizing discrimination. By doing so, Chief Justice Earl Warren helped insulate against “opponents who would claim that the Court was ‘wrong’ in its decision.”^[17]

In U.S. v. Nixon, 418 U.S. 683 (1974), President Richard Nixon’s claim of “executive privilege” to prevent release of Oval Office recordings drew a unanimous denial for similar reasons.

“If the court had not been unanimous, Nixon may have had a basis to refuse to comply by arguing to the public that the justices could not agree on the Constitution’s commandments concerning such situations.”^[18]

Endnotes

[1] Nicholas L. Georgakopoulos, The Distribution of Justices’ Votes and Countering National Disunity, 17 FIU L. Rev. 119, 121 (2023).

[2] Thomas R. Hensley & Scott P. Johnson, Unanimity on the Rehnquist Court, 31 Akron L. Rev. 387, 388 (1998) (U.S. Supreme Court Terms 1953-90); Lee Epstein, William M. Landes, & Richard A. Posner, Are Even Unanimous Decisions in the United States Supreme Court Ideological?, 106 Nw. U. L. Rev 699, 701 (2012) (from Supreme Court terms 1946-2012 in the Supreme Court Database, also known as the Spaeth Database).

[3] SCOWstats at scowstats.com under Statistics for Individual Years, Decisions Arranged by Vote Split.

[4] See SCOTUSblog, at https://www.scotusblog.com/case-files/terms/ot2024/.

[5] Fourth Amendment—Search and Seizure—Community Caretaking Exception—Caniglia v. Strom, 135 Harv. L. Rev. 371, 371, 376-80 (2021).

[6] Hensley & Johnson, supra note 2, at 398-99.

[7] Georgakopoulos, supra note 1, at 129, 121.

[8] Christopher E. Smith & Scott P. Johnson, Newcomer on the High Court: Justice Souter and the Supreme Court’s 1990 Term, 37 S.D.L. Rev. 21, 34 (1991/1992).

[9] Epstein, Landes, & Posner, supra note 2, at 702.

[10] Id. at 706.

[11] Id. at 701 (“The graph shows that part of the upward trend is the result of an increasing fraction of unanimous decisions reversing the Ninth Circuit.”).

[12] Hensley & Johnson, supra note 2, at 397.

[13] Epstein, Landes, & Posner, supra note 2, at 706; Hensley & Johnson, supra note 2, at 404.

[14] Hensley & Johnson, supra note 2, at 402-04.

[15] Id. at 402.

[16] Epstein, Landes, & Posner, supra note 2, at 702-03.

[17] Smith & Johnson, supra note 8, at 33.

[18] Id.