With this post, we review the most recent data on the Court’s and individual Justice’s experience with employment law cases.
From 1990 to 2018, defendants in employment law cases who had prevailed at the Court of Appeal were slightly below .500 at the Supreme Court, winning twenty-six and losing thirty. Between 2010 and 2018, winning defendants won nine cases at the Supreme Court while losing eleven.
Plaintiffs who had won below fared a few percentage points worse than winning defendants did. Between 1990 and 2018, plaintiffs who arrived at the Supreme Court on a win won twenty of their cases while losing twenty-six. From 2010 to 2018, winning plaintiffs were four wins and six losses at the Supreme Court.
Now we combine the data to derive an overall won-loss record for defendants in employment law cases (disregarding which side won below). From 1990 to 2018, defendants in employment law cases won fifty-two cases while losing fifty-three. Between 2010 and 2018, defendants won fifteen while losing eighteen.
Next, let’s look at what the principal issues falling under the umbrella of “employment law” were. Between 1990 and 2018, the Court decided fifty-three cases involving tort and contractual liability in the employment law sphere, seventeen involving discrimination, thirty-one involving wage and hour and collective bargaining issues and seven “other.” Since 2010, the Court has decided seven tort and contractual liability cases, four discrimination cases, twenty wage and hour/collective bargaining cases and three “other.”
Next, we review the yearly voting records for the Justices – which Justices voted for employment law defendants most often between 2010 and 2018. Justice Chin was first with seventeen votes, Justice Corrigan had sixteen, Justice Baxter had fourteen and Justice Kennard had thirteen.
Next, it’s the Justices’ yearly votes against employment law defendants. Leading in that category is Justice Corrigan with nineteen votes, followed by Justices Werdegar, Chin and Liu at seventeen votes apiece, then Chief Justice Cantil-Sakauye at fifteen and Justices Kruger and Cuellar at nine apiece.
Over the entire twenty-nine-year period, defendants in employment law cases won 49.53% of the time at the Supreme Court. So our next Table combines all of each Justice’s votes across the period and calculates which Justices supported employment law defendants more often than 49.53% of the time.
Justice Arabian leads at 63.64%, followed by seven Justices in the fifties – Justices Baxter (56.52%), Brown (54.29%), Corrigan (52.63%) and Chin (51.58%), plus Chief Justice Lucas (50%), Justice Eagleson (50%) and Chief Justice George (50%).
And finally, the Justices who were less likely to vote for employment law defendants than the Court as a whole. Falling just below the Courtwide average were Justice Moreno (47.27%), Justice Kennard (43.01%), Justice Werdegar (42.39%) and Justice Panelli (40%). Justice Mosk voted for defendants in 38.46% of his employment law cases, and Chief Justice Cantil-Sakauye is just below that at 37.5%. Below the Chief Justice, we find Justices Liu (26.09%), Kruger and Cuellar (both 18.18%). Justice Broussard participated in only two employment law cases before leaving the Court in 1991, voting against the defendant in both. The takeaway from these last two charts is while defendants have held their own in employment law cases over the past twenty-nine years, winning fifty-two and losing fifty-three, four of the six Justices (excluding the newest addition to the Court Justice Groban) on the Court rank as “below average” likelihoods to support the views of employment law defendants. Only Justices Corrigan and Chin have supported the defense side more often than the Court as a whole.
Join us back here next week as we begin a new topic.