In recent years, the nation's focus on judicial affairs tends to concentrate on the most identifiable level, namely the Supreme Court of the United States. Most notably within the past year, the Supreme Courts' decisions in Grutter v. Bollinger (1) and Lawrence v. Texas (2) have fundamentally changed both society's accepted liberties and the public's view of judicial affairs. This focus, however, unnecessarily overshadows a basic reality of the United States legal system: that these historic decisions often originate in state courts.
The nation's state courts of last resort are as distinctive as their respective host states. Internally, a state's highest court can also be considered reflective of the individual judges that make up a quorum on a daily basis. In the current era, defined by what can justifiably be called a perpetually litigious society, state courts continue to preserve distinguishing qualities. By focusing on the high court of one particular state, it is possible to examine court structure, pressing topical issues, and voting patterns among individual judges. As one of the more unique courts of last resort in the country, the Supreme Court of Delaware provides an optimal specimen for analysis. (3)
This high court study examines the separate opinions issued in divided cases by the justices of the Supreme Court of Delaware from 1997-2003. (4) In a closed universe study of a single court, divided cases are the most effective media for insight because they help define the internal roles within the collective. (5) While the primary goal of this study is to identify these roles through statistical analysis of voting trends, the analytical portion of this study devotes additional consideration to several environmental issues including: whether a true majority exists in the court; whether the Supreme Court of Delaware is a reliable model for judicial efficiency or judicial economy; and whether the court's bipartisan composition is at all responsible for apparent efficiencies. These are some of the issues addressed in the forthcoming analysis.
As demonstrated by the discussion in Part II, divided opinions are particularly relevant in Delaware in light of its unique court structure. (6) Part III of this study will outline the methodological process utilized in conducting the relevant statistical research. (7) Part IV introduces sources of division in three topical areas of case law. (8) In Part V, the voting patterns of each justice will be examined in a topical context. (9) Finally, in Part VI, the study will conclude with a summary of pertinent trends and a forecast of future voting behavior. (10)
II. UNIQUE ATTRIBUTES OF THE DELAWARE COURT SYSTEM
In general, separate opinions are considered highly probative of current judicial trends and individual tendencies of the judges who sit on a single state court. (11) A unanimous decision by a court often reflects a compromise rather than an absence of varying opinions on an issue. (12) A divided decision, on the other hand, typically enunciates "'a statement by the judge as an individual'" (13) symbolic of unique individual beliefs and attributes. (14)
While separate opinions benefit an analysis of any jurisdiction, they are particularly relevant to a study of the Supreme Court of Delaware because that court rarely issues non-unanimous opinions. (15) For example, in 1995, the Supreme Court of California issued multiple opinions in over seventy percent of its cases, and the Supreme Court of Indiana stood divided in approximately thirty-five percent of its decisions. (16) In contrast, throughout the fifty-year history of the Supreme Court of Delaware, its justices have written separate opinions at an average of three percent of each year's reported cases--this translates to less than one percent of the entire year's docket. (17)
This sensation--dubbed Delaware's "unanimity norm" (18)--is thought to be based on a variety of factors, including: the small size of the state and of the Supreme Court of Delaware's bench; Delaware's judicial appointment system; the Supreme Court of Delaware's mandatory jurisdiction; and the court's unique internal operating procedures. …