Are Criminal Cases With a Dissent More Often Reversed?

Yesterday, we reviewed the year by year data, studying whether Court of Appeal cases with a dissenter were more often reversed than unanimous decisions.  Today, we’re studying the Court’s criminal cases.

The answer for criminal cases is clear: yes, cases with a dissent are more likely to be reversed than unanimous decisions, generally by a wide margin.  In 1993, 60% of divided decisions and 44.44% of unanimous decisions were reversed.  In 1994, all the divided decisions and 47.5% of decisions with a dissent were reversed.  In 1995, two-thirds of divided decisions and 43.48% of unanimous decisions were reversed.  In 1996 and 1997, all of the Court’s unanimous criminal decisions were overturned.  On the unanimous side, 38.46 and 51.22% of unanimous decisions were reversed.  In 1998, 80% of divided decisions were reversed, but only 30% of unanimous decisions were.  In 1999, 100% of divided decisions were reversed, but only 45.45% of unanimous decisions were.  In 2000, half of the divided decisions were reversed, while 34.04% of unanimous decisions were reversed.  In 2001, all of the unanimous decisions were reversed, but only 38.89% of unanimous decisions were.  In 2002, two-thirds of the divided decisions were reversed, while 49.15% of unanimous decisions were reversed.  In 2003, 80% of unanimous decisions were reversed, and 36.21% of the Court’s unanimous decisions were reversed.  In 2004, 76.92% of divided decisions were reversed, while only 36.67% of unanimous decisions were reversed.  In 2005, three-quarters of the Court’s divided decisions and 35.09% of the unanimous decisions were overturned.  In 2006, all of the Court’s divided decisions and 46.94% of the Court’s unanimous decisions were reversed.  In 2007, 70% of the Court’s divided decisions were reversed, while only 25.49% of the Court’s unanimous decisions were.

In 2008, half the divided criminal decisions were reversed and 30.36% of unanimous decisions were.  In 2009, three-quarters of decisions with dissents were reversed, and 31.58% of unanimous decisions were reversed.  All of the Court’s divided criminal cases were reversed in 2010 and 2011.  In 2010, the reversal rate for unanimous decisions was 30.88%.  In 2011, only 20.45% of the Court’s unanimous criminal decisions were reversed.  In 2012, 42.86% of the Court’s divided decisions and 42.86% of the unanimous decisions were reversed.

In 2013, all of the Court’s divided decisions were reversed, but only 38.64% of the Court’s unanimous decisions were reversed.  In 2014, two-thirds of the  Court’s divided decisions were reversed, but 40.38% of the unanimous decisions were reversed.  In 2015, none of the Court’s divided decisions were reversed, and 52.27% of unanimous decisions were reversed.  In 2016, all of the Court’s decisions with dissents were reversed, and 53.06% of the unanimous decisions were reversed.  In 2017, only one-third of decisions with dissents were reversed, and 43.59% of the Court’s unanimous decisions were reversed.

Join us back here next Thursday as we address another issue in our study of the Court’s decision-making.

Image courtesy of Flickr by Kai Schreiber (no changes).

Are Civil Cases With a Dissent More Often Reversed?

Last week, we reviewed the data on whether cases published at the Court of Appeal are more frequently reversed by the Supreme Court.  This week, we’re reviewing a similar question: are cases with a dissent at the Court of Appeal systematically more likely to be reversed at the Supreme Court?

For two-thirds of the years since 1993, civil cases with a  dissent were more frequently reversed than unanimous decisions.  In 1993, divided decisions were reversed 87.5% of the time, while unanimous decisions were reversed in 65.79% of cases.  In 1994, 69.23% of divided decisions and 65.79% of unanimous decisions were reversed.  In 1995, 55.56% of unanimous decisions were reversed to 41.67% of divided decisions.  In both 1996 and 1997, 80% of divided decisions were reversed, while 64% (1996) and 62.22% (1997) of unanimous decisions were reversed.

In 1998, only a quarter of decisions with a dissent were reversed while 52% of unanimous civil decisions were.  The next year, 57.14% of divided decisions were reversed to 60% of unanimous decisions.  In 2000 and 2001, 77.78 and 83.33% of divided decisions.  Only half the unanimous decisions each year were reversed.

In 2002, none of the divided civil decisions were reversed, while 53.19% of unanimous decisions were.  In 2003, all of the decisions with dissents were reversed, but only 69.05% of unanimous decisions were.  In 2004, 71.43% of divided decisions were reversed, but only half the unanimous decisions were.  The following year, 60% of divided decisions and 56.52% of unanimous decisions were reversed.

In 2006, 62.5% of divided decisions and 64.44% of unanimous decisions were reversed.  In 2007, two-thirds of divided decisions and 55.32% of unanimous decisions were reversed.  In 2008, two-thirds of decisions with dissents and 58.06% of unanimous decisions were reversed.  In 2009, half of the divided decisions and 52.5% of unanimous decisions were reversed.  In 2010, only a third of divided decisions were reversed; 56.41% of unanimous decisions were.  In 2011, all of the divided decisions were reversed, while 62.5% of unanimous decisions were reversed.  In 2012, 83.33% of decisions with a dissent were reversed, while 70% of unanimous decisions were reversed.  In 2013, half of divided decisions were reversed, and 46.67% of unanimous decisions were reversed.  In 2014, two-thirds of divided decisions were reversed, but only 45% of unanimous decisions were reversed.  In 2015, all of the divided decisions were reversed, and 70.97% of unanimous decisions were.  In 2016, 57.14% of divided decisions and 55.17% of unanimous decisions were reversed.  Last year, three-quarters of divided decisions and half of all unanimous decisions were overturned.

Join us tomorrow as we turn our attention to the Court’s criminal docket.

Image courtesy of Flickr by Dale Cruse (no changes).

 

Are Published Criminal Cases More Often Reversed?

Last week, we looked at the data on how prevalent unpublished Court of Appeal opinions are in the Court’s civil and criminal dockets.  Yesterday, we looked at a related question: are published Court of Appeal opinions in civil cases reversed by the Supreme Court at a consistently higher (or lower) rate than unpublished decisions are?  We showed that there is no consistent relationship between published and unpublished lower court decisions in civil cases with respect to the likelihood of reversal.

But what about criminal cases?  We report the data in Table 427, and clearly, criminal cases are a different story.  Criminal cases which were published at the Court of Appeal level were more often reversed than unpublished Court of Appeal cases in twenty-one of the twenty-four years since 1994.

In 1994, published decisions were reversed 44.44% of the time, while unpublished decisions were reversed in 41.18% of cases.  In 1995, 75% of published decisions were reversed, but 39.02% of unpublished decisions were.  In 1996, the rate for published cases was 57.14% to 35.71% for unpublished decisions.  In 1997, 62.5% of published decisions were reversed; 48.15% of unpublished decisions were.  In 1998, 41.67% of published decisions were reversed.  One-third of unpublished decisions were.  In 1999, 57.69% of published decisions were reversed.  The reversal rate for unpublished decisions was 40.91%.  In 2000, published decisions were reversed 46.43% of the time, while only 25.93% of unpublished decisions were reversed.

2001 was one of the few outlier years – 42.31% of published decisions were reversed and 46.88% of unpublished decisions were.  In 2002, 63.41% of published decisions were reversed.  The reversal rate for unpublished decisions fell slightly to 40%.  In 2003, reversal rates fell on both sides to 50% for published decisions and 32.43% for unpublished decisions.  In 2004, 60% of published decisions were reversed, while 32.56% of unpublished decisions were reversed.  In 2005, 56% of published decisions were reversed, while only a quarter of unpublished decisions were.  In 2006, 73.68% of published criminal decisions were reversed, while 38.24% of unpublished decisions were.  In 2007, half of published decisions were reversed, but only 18.18% of unpublished decisions were.  In 2008, 58.62% of published decisions were reversed, while the reversal rate on the unpublished side fell to 13.51%.

In 2009, 56% of published decisions were reversed, while only 19.44% of unpublished decisions were.  In 2010, the reversal rate for published decisions was 50%.  The reversal rate for unpublished decisions was 26.67%.  In 2011, the reversal rate for published decisions was 53.33%.  The reversal rate for unpublished criminal decisions was 22.22%.  In 2012, the two sides converged – 43.24% of published decisions were reversed, and 42.5% of unpublished decisions were.  In 2013, two-thirds of published decisions were reversed, while only 34.38% of unpublished decisions were reversed.  In 2014, 57.14% of published decisions were reversed.  The reversal rate for unpublished cases was 32.35%.

2015 was one of the few years where unpublished decisions were more often reversed – 54.17% for unpublished decisions, 50% for published decisions.  In 2016, 61.9% of published decisions were reversed, while 51.61% of unpublished decisions were reversed.  Last year, reversals among published decisions fell to 39.13%, while 47.37% of unpublished decisions were reversed.

Join us back here next Thursday as we turn our attention to a new question.

Image courtesy of Flickr by Ken Lund (no changes).

Are Published Civil Cases From the Court of Appeal More Often Reversed by the Supreme Court?

Last week, we tracked the yearly data as to how high a portion of the Court’s docket on both the civil and criminal sides consisted of published decisions from the Court of Appeal.  This week, we’re analyzing another aspect of the difference between published and unpublished Court of Appeal decisions.  Are decisions which were published below more likely to be published?  One can imagine theories to justify either possible answer.  Perhaps because they are precedent below, published Court of Appeal decisions are more stringently reviewed, and therefore more often reversed.  Or perhaps, since unpublished Court of Appeal decisions aren’t precedential, the grant of review indicates that the Supreme Court believes the decision is wrong, suggesting that the reversal rate for unpublished decisions might be higher.

We report the yearly data from 1993 to 2017 in Table 426.  Clearly, the answer is no – neither published nor unpublished civil cases are consistently reversed at a faster pace.  Indeed, for many years, the reversal rate for published and unpublished civil decisions is quite close.  In 1993, published civil cases were reversed 73.33% of the time, while unpublished civil cases were reversed 68.75% of the time.  In 1994, published decisions were reversed in 62.5% of cases and unpublished decisions were reversed 73.68% of the time.  In 1995, published decisions were reversed 55.88% of the time, and unpublished decisions were reversed in 47.83% of cases.  Beginning in 1996, the reversal rate of unpublished decisions jumped to 83.33%, and it remained at 80% in 1997.  The reversal rate for published decisions stayed flat – 55.56% in 1996, 53.33% in 1997.  But that didn’t change the long-term trend; the reversal rate for unpublished decisions was between 50% and 70% every year from 2002 to 2008.  The rate for published decisions was somewhat more variable: 50% in 2002, 75% in 2003, 45.71% in 2004, 52.94% in 2005, 63.41% in 2006, 59.09% in 2007 and 60% in 2008.

The reversal rate for published decisions remained at the same level in 2009 (57.14%) and 2010 (63.33%), while the reversal rate for unpublished decisions fell to one-third.  In 2011, 82.61% of published decisions were reversed, while 60% of unpublished decisions were.  In 2012, 71.43% of published decisions were reversed, while 80% of unpublished decisions were.  The following year, reversals fell to 45.45% on the published side and to 50% on the unpublished side.  In 2014, reversals increased slightly on the published side to 47.37%, and remained at 50% for unpublished decisions.  In 2015, published civil cases were reversed 71.43% of the time.  Unpublished decisions were reversed 75% of the time.  In 2016, published civil cases were reversed 55.17% of the time, and unpublished civil cases were reversed 57.14% of the time.  Finally, in 2017, published civil cases were reversed 57.58% of the time.  Unpublished cases were reversed in 44.44% of cases.

Join us back here tomorrow as we review the data for the criminal docket.

Image courtesy of Flickr by Mark Hogan (no changes).

How Many of the Court’s Criminal Cases are Published at the Court of Appeal?

Yesterday, we reviewed the year-by-year data, looking at how much of the Court’s civil docket is cases which were published at the Court of Appeal.  We found that fairly consistently for the past twenty-four years, the Court has averaged between sixty and eighty percent of its civil docket in published cases.

It’s a very different story on the criminal side.  In Table 424, we report the raw numbers – the year by year total number of criminal law decisions which were published below.  The data shows a high degree of variability from one year to the next.  In 1994 and 1995, only nine and eight of the Court’s criminal decisions, respectively, were published below. From 1996 to 1998, that number rose a bit, to 14 (1996), 16 (1997) and 12 (1998).  In 1999, 26 of the Court’s criminal cases were published below.  In 2000, the number was 28 cases, and in 2001, there were 26 again.  In 2002, the Court decided 41 criminal cases which were published below.  In 2003, there were 26; in 2004, there were 30, and in 2005, there were 25.  In 2006, 19 criminal cases were published.  In 2007, 28 were, and in 2008, 209 were.  In 2009, 25 cases were published below.  In 2010, 28 cases were published.  In 2011, 15 criminal cases were published at the Court of Appeal.  In 2012, 37 cases were published, but the numbers have been flat since – 18 cases in 2013, 19 in 2014, 20 in 2015, 21 in 2016 and 19 in 2017.

In Table 425, we report the year-by-year data as a percentage of the Court’s criminal docket each year.  The data shows that although the share of the criminal docket accounted for by published cases edged upwards around 2000, published cases have never dominated the criminal docket the way they do on the civil side.  In 1994, 21.95% of the criminal docket was published below.  In 1995, only 16.33% was.  In 1996, one third of the criminal docket was published below.  In 1997, 36.36% was.  In 1998, 26.67% of the criminal docket was published below.  In 1999, the number jumped to 54.17%, and it was 50.91% in 2000.

In 2001, 44.83% of the criminal docket was published below.  In 2002, it was 57.75%.  The published portion was almost identical the next three years – 41.27% in 2003, 41.1% in 2004 and 40.98% in 2005.  In 2006, 35.85% of the criminal docket was published.  In 2007, 45.9% was.  In 2008, 43.94% of the criminal cases were published, and in 2009, 40.98% were.  In 2010, 38.36% of the criminal docket was published.  In 2011, 29.41% was.  In 2012, the published share rose to 48.05%.  Since that time, the published share has been fairly consistent – 36% in 2013; 34.55% in 2014; 45.45% in 2015; 40.38% in 2016 and 45.24% in 2017.

Join us back here next week as we continue our work on the Court’s decision making.

Image courtesy of Flickr by Rex Boggs (no changes).

How Many of the Court’s Civil Cases Are Published at the Court of Appeal?

Last time, we were evaluating how much of the Court’s civil and criminal dockets came from divided Court of Appeal decisions, and whether decisions with a dissenter typically took longer to decide at the Supreme Court level.  This week, we’re looking at a new issue – how much of the Court’s docket is accounted for by published decisions?  The conventional wisdom is that the Court spends nearly all its time reviewing published decisions, and that makes sense – you would expect that any issue important enough to draw the Supreme Court’s attention would have been important enough to be published below.  So let’s start with the civil docket.

In Table 422 below, we report the raw numbers – year by year, how many civil cases did the Court decide which were published at the Court of Appeal level.  In 1994, 32 of the Court’s civil decisions were published below.  In 1995, 34 were.  The number dipped to only 18 in 1996, but was relatively steady from 1997 through 2005, always hovering in the mid-30s.  In 2006, 41 of the Court’s decisions were published below.  In 2007, 44 were.  Between 2008 and 2010, the number reverted to trend – 35, 35 and 30 published decisions, respectively.

Since 2010, in terms of raw numbers, published decisions on the civil side have been dropping.  In 2011, 23 of the Court’s civil decisions were published below.  In 2012, 21 were, and the following year, 22 were.  In 2014, 19 civil decisions were published below.  Since that time, the number’s been edging upwards – 28 in 2015, 29 in 2016 and 33 last year.

Of course, the significance of all that depends on just how many cases the Court decided each year.  So below, we report the same data, with the number of civil decisions published below reported as a percentage of the total civil docket.  What we see is that with only occasional short spikes, the number has been quite steady, sitting at between 60 and 80 percent for most of the past twenty-four years.

The years 1994-1997 were almost flat – 62.75% in 1994, 59.65% in 1995 and 60% in 1996 and 1997.  In 1998, 72.22% of the Court’s civil docket was published below.  In 1999, the number dropped slightly to 63.46%.  The following year, it was 63.27%.  In 2001, 68.75% of the civil docket was published.  In 2002, 70.83% was, and in 2003, it was 72.73%.  The share was flat in 2004 and 2005 – 66.04% in 2004, 66.67% in 2005.

The share rose a bit from 2006 through 2009 – 77.36% in 2006, 78.57% in 2007, 87.5% in 2008 and 79.55% in 2009.  In 2010, 71.43% of the civil docket was published, and that fell to only 69.7% in 2011.  In 2012, 80.77% of the civil docket was published.  That dipped again to 68.75% in 2013, but has been steady since – 82.61% in 2014, 87.5% in 2015, 78.38% in 2016 and 78.57% last year.

Join us back here tomorrow as we take a look at the Court’s criminal docket.

Image courtesy of Flickr by Charlie Day (no changes).

Do Criminal Cases With Dissents Below Take Longer to Decide?

Yesterday, we asked whether the Court’s civil cases with a dissent below take longer to decide, charting divided and unanimous cases against the number of days from grant of review to scheduling of oral argument.  Today, we’re looking at the criminal docket.

We can see from Table 421 below that the answer to the question we asked in the title is perfectly clear: do criminal cases with dissents take longer to decide?  No.  In only two of twenty-four years in our data base did cases with a dissent below average less time to get to argument than unanimous cases did.  (A major caveat – since all death penalty claims come straight from the trial court to the Supreme Court, and they are by definition “unanimous” decisions, we exclude them entirely from this analysis).

In 1994, criminal cases with a dissent below reached argument in an average of 251 days.  Unanimous cases took 450.24 days.  In 1994, divided cases averaged 412.33 days, while unanimous ones averaged 490.23 days.  In 1996, divided cases averaged 335 days to argument, while unanimous decisions averaged 539.55 days.  In 1997, divided cases averaged 191.67 days to argument, while unanimous decisions averaged 334.59 days.  In 1998, divided cases averaged 328.6 days, and unanimous decisions averaged 608.52 days.  The following year, divided cases averaged 512 days to argument, while unanimous decisions averaged 548.24 days.

In 2000, for once divided cases took longer – cases with a dissent below averaged 662.25 days to argument, while unanimous cases averaged 480.28 days.  In 2001, divided cases were still a bit higher – 495 days to 459.65 days for unanimous decisions.  But in 2002, divided cases took 311.75 days to 436.09 days for unanimous decisions.  In 2003, divided cases averaged 423.6 days to argument, while unanimous criminal cases came up in 592.55 days.  In 2004, decisions with a dissent averaged 434.08 days, and unanimous decisions came up in 622.15 days.  In 2005, divided cases averaged 494.75 days, but unanimous decisions averaged 567.87 days.

In 2006, criminal decisions with a dissent below took an average of 598.5 days to reach argument, while unanimous criminal decisions came up in 760.73 days.  In 2007, divided decisions took 538.2 days to 818.14 days for unanimous cases.  In 2008, divided decisions averaged 432 days to 778.97 days for unanimous decisions.  In 2009, divided criminal decisions averaged 486.25 days to argument, while unanimous cases averaged 605.16 days.  In 2010, divided decisions reached argument in 478 days, while unanimous cases averaged 578.8 days.  The difference increased in 2011 – 468 days for divided decisions, 857.28 days for unanimous decisions.  In 2012, divided decisions averaged 434 days to argument, while unanimous decisions averaged 722.07 days.

In 2013, divided criminal decisions averaged 485.17 days to argument, while unanimous decisions averaged 639.78 days.  In 2014, divided decisions averaged 562.33 days, while unanimous decisions averaged 699.38 days.  In 2015, measuring the average days to argument for divided criminal cases is easy – there weren’t any.  Unanimous criminal decisions took an average of 698.73 days.  In 2016, divided criminal cases took an average of 450 days to decision, while unanimous cases averaged 665.44 days.  Finally, last year, criminal cases with a dissent below averaged 539.33 days from grant to argument, while unanimous decisions averaged 635 days.

Join us back here next Thursday for our next research question.

Image courtesy of Flickr by Matthew Dillon (no changes).

Do Civil Cases With Dissents Below Take Longer to Decide?

For the past several weeks, we’ve been comparing the data on cases which were decided unanimously at the Court of Appeal level to cases which had a dissent.  This week, we’re considering another question: do divided cases from the Court of Appeal take longer to decide?  Today, we’re looking at the Court’s civil docket.

In Table 420, we’re plotting unanimous and non-unanimous civil cases from the Court of Appeal against the number of days for each case from the grant of review to the oral argument (because of the California rule requiring cases to be decided within ninety days of oral argument, grant to oral argument date is a reasonable proxy for the time a case takes to decide).  As we can see from the plot, it’s not at all clear that divided cases take longer to decide.  In fact, the years are split right down the middle – in twelve of the last twenty-four years, divided civil cases averaged longer from grant to argument, and in twelve, they were actually scheduled for argument more quickly.

In 1994, cases with a dissent below averaged 353.92 days to oral argument, while civil cases which were unanimous below took 365.47.  In 1995, divided cases averaged 376.5 days, while unanimous cases were scheduled in 321.09.  In 1996, divided cases averaged 278.4 days, while unanimous ones took 355.64 to get to argument.  The following year, divided cases ballooned to 519 days, while unanimous cases were scheduled in an average of 327 days.

In 1998, divided cases averaged more than two years from grant to argument – 765 days.  Unanimous cases averaged 341.62.  In 1999, divided cases averaged 562.86 days, while unanimous ones averaged 407.31.  In 2000, divided civil cases averaged 500.89 days from grant to argument, while unanimous cases averaged 471.33 days.  In 2001, divided cases averaged 437.5 days to 441.88 for unanimous ones.  In 2002, divided civil cases were being scheduled in slightly less than a year – 351 days.  Unanimous cases averaged 438.51 days.  The following year, both numbers were nearly the same – 364 days for divided cases, 443.74 days for unanimous cases.

In 2004, divided cases averaged 427.71 days to argument, while unanimous ones averaged 507.09 days.  In 2005, divided civil cases averaged 638.6 days to 521.28 days for unanimous cases.  In 2006, divided cases fell to 541.5 days, while unanimous ones were flat at 531.33 days.  In 2007, divided cases averaged 466.78 days from grant to argument, while unanimous ones averaged 571.09 days.  The following year, divided cases averaged 626.44 days, while unanimous ones were once again flat at 565.32 days.

In 2009, divided civil cases averaged 541 days to argument, while unanimous decisions took 559.4 days.  In 2010, divided cases rose to 783.33 days to argument, while unanimous decisions were once again flat at 545.31 days.  In 2011, divided civil cases averaged 532.22 days, while unanimous decisions dropped to 435.42 days.  In 2012, divided civil cases averaged 581.17 days, while unanimous ones averaged 661.85 days to argument.  In 2013, divided cases averaged 385 days to argument, while unanimous decisions averaged 570.93 days.  In 2014, divided cases averaged 436 days, while unanimous ones took 635.45 days.  In 2015, divided civil cases averaged 307 days to argument, while unanimous decisions were calendared for argument in an average of 626.29 days.  In 2016, the average wait for divided civil cases more than doubled to 746.29 days, while unanimous cases averaged 657.76 days.  Last year, divided civil cases averaged 680.88 days from grant to argument.  Unanimous civil cases averaged 631.76 days.

Join us back here tomorrow as we review the data for the criminal docket.

Image courtesy of Flickr by Edgar Cervantes (no changes).

Does Dissent at the Court of Appeal Predict Division in Criminal Cases at the Supreme Court?

Yesterday, we looked at the year-by-year data on the civil side, asking whether the presence of a dissent at the Court of Appeal level is reliably correlated with one or more dissenters at the Supreme Court level.  Today, we’re turning our attention to the criminal side of the docket.

In Table 418, we compare the number of unanimous criminal decisions with a dissent below to the number of non-unanimous divided decisions.  Once again, there’s no clear, consistent relationship between dissent at the Court of Appeal and dissent at the Supreme Court.  For thirteen years, more unanimous criminal decisions had dissents below; in ten years, more non-unanimous decisions did.

In Table 419, we report the percentage share of unanimous and non-unanimous criminal decisions which had a dissent below.  Once again, dissent at the Court of Appeal level does not appear to be a reliable predictor of dissent at the Supreme Court.  In 1994, none of the Court’s unanimous criminal decisions involved a dissent below; 4% of the non-unanimous decisions did.  In 1995, 10.34% of the unanimous decisions were divided below and none of the non-unanimous decisions were.  In 1996, 3.85% of the unanimous decisions were divided below, but 12.5% of the non-unanimous decisions were.

For 1997, 12.5% of the Court’s unanimous criminal decisions had a dissent below, but none of the non-unanimous decisions did.  In 1998, the relationship flipped – 8% of the unanimous cases, 15% of the non-unanimous ones.  That relationship held steady for the two years following.  In 1999, 3.57% of the unanimous decisions and 15% of the non-unanimous ones were divided below, and in 2000, 7.89% of the unanimous decisions and 29.42% of the non-unanimous cases had dissents below.  In 2001, 8.33% of the unanimous decisions had a dissent below, but none of the non-unanimous decisions did.

For the years 2002 through 2006, the relationship held steady – divided decisions were a larger portion of the non-unanimous cases than of the unanimous cases.  In 2002, 10.87% of the unanimous decisions had a dissent, but 28% of the non-unanimous decisions did.  In 2003, 4.65% of the unanimous decisions had a dissent and 15% of the non-unanimous decisions did.  In 2004, 15.79% of the unanimous cases had a dissent below, but one quarter of the non-unanimous decisions did.  In 2005, none of the unanimous decisions had a dissent below, but 22.22% of the non-unanimous cases did.  In 2006, 3.23% of the unanimous decisions had a dissent below, but 13.64% of the non-unanimous decisions did.

In 2007, 19.23% of the Court’s unanimous criminal decisions had a dissent below; none of the non-unanimous decisions did.  In 2008, the numbers were 12.07% for unanimous decisions, 37.5% for non-unanimous decisions.  In 2009, 2.04% of unanimous decisions had a dissent below, but one quarter of non-unanimous decisions did.  In 2010, 8.47% of the unanimous criminal decisions were divided below, but 7.14% of the non-unanimous cases were.  In 2011, 10.81% of the unanimous decisions had a dissent below, but 21.43% of the non-unanimous cases did.  In 2012, 9.68% of the unanimous decisions had a dissent below, but only 6.67% of the non-unanimous cases did.

Curiously, the Court hasn’t had a non-unanimous criminal decision which featured a dissent at the Court of Appeal since 2012.  In 2013, 14.63% of the unanimous criminal decisions had a dissent below.  At 2014, 6.52% of the unanimous decisions did.  In 2015, no criminal decision, either unanimous or non-unanimous, involved a Court of Appeal dissent.  In 2016, 6.25% of the unanimous criminal decisions had a dissent, and last year, 10.71% did.

Join us back here next Thursday as we continue looking at the Court’s experience with dissent at the Court of Appeal level.

Image courtesy of Flickr by Sheila Sund (no changes).

Does Dissent at the Court of Appeal Predict Division in Civil Cases at the Supreme Court?

Last time, we tested the often-heard view that a case which didn’t have a dissenter at the Court of Appeal has no chance of getting Supreme Court review.  This week, we’re testing a different correlation for dissent below – does it help predict dissent at the Supreme Court?  One would think the answer might be yes – surely a case which divided a three-Justice panel has a reasonable chance of dividing the seven Justices of the Supreme Court.

In Table 416, we plot the yearly data for (1) divided cases from the Court of Appeal which were decided unanimously at the Supreme Court; and (2) divided cases which were decided unanimously.  We see no persistent trend in the data.  In fourteen years of the twenty-four year period, more unanimously decided cases had dissenters below.  In nine years, more non-unanimous cases were divided at the Court of Appeal.  The difference is never substantial – in no single year were ten or more divided cases from the Court of Appeal decided either unanimously or non-unanimously.

In Table 417, we plot the divided unanimous and non-unanimous cases as a percentage of the total (i.e., “one-third of the civil cases decided unanimously had a dissenter at the Court of Appeal”).  Reviewed this way, the picture flips from the absolute numbers – a larger share of the unanimous decisions had a dissenter below in only nine of the twenty-four years.  In 1994, 34.78% of unanimous civil cases had a dissenter below to only 17.86% of non-unanimous decisions.  In 1995, 22.22% of unanimous decisions and 16.67% of non-unanimous ones were divided below.

In 1996, 11.76% of unanimous civil cases were divided below to 23.08% of non-unanimous decisions.  The following year, no unanimous decisions had a dissenter below, while 15.63% of the non-unanimous cases did.  In 1998, 12% of the unanimous civil decisions had a dissenter below to only 3.45% of non-unanimous decisions.  In 1999, the relationship flipped again – 3.57% of unanimous decisions were divided below, while one-quarter of non-unanimous ones were.  In 2000, 12.5% of unanimous decisions had a dissent below, while 24% of non-unanimous ones did.  The following year, only 3.7% of unanimous decisions drew a dissent below; 23.81% of non-unanimous ones did.

In 2002, the Court only decided a very small number of cases with a dissent below.  Only 3.45% of unanimous decisions were divided below, and none of the non-unanimous ones were.  In 2003, none of the unanimous decisions were divided below, but 11.76% of the non-unanimous decisions were.  In 2004, the numbers were almost identical – 12.12% of unanimous decisions, 15% of non-unanimous ones.  In 2005, 12.5% of unanimous decisions were divided below, but none of the non-unanimous decisions were.

In 2006, the relationship flipped again – 7.69% of unanimous decisions were divided below, while 35.71% of non-unanimous ones were.  In 2007, 11.76% of unanimous decisions and 22.73% of non-unanimous ones were divided below.  In 2008, the numbers were almost identical – 22.58% of unanimous decisions, 22.22% of non-unanimous ones.  In 2009, 10.81% of the unanimous civil decisions were divided below, but none of the non-unanimous ones were.  In 2010, 3.03% of unanimous decisions had a dissenter below, while 22.22% of non-unanimous decisions did.  In 2011, 24% of unanimous decisions and 37.5% of non-unanimous decisions had a dissenter below.  In 2012, 15.79% of unanimous decisions had a dissenter below, but 42.86% of non-unanimous ones did.  In 2013, 8% of unanimous decisions had a dissenter below, while none of the non-unanimous decisions did.  In 2014, 12.5% of unanimous decisions and 14.29% of non-unanimous decisions had a dissenter below.

In 2015, dissents at the Court of Appeal were once again quite rare on the civil docket – only 3.57% of unanimous decisions had a dissent below, and none of the non-unanimous ones did.  But that turned out to be a one-year did.  In 2016, 16.67% of the unanimous civil decisions and one-quarter of the non-unanimous decisions had a dissent below.  Last year, 18.75% of the unanimous decisions and 20% of the non-unanimous decisions had a dissent below.

Table 417 illustrates our somewhat surprising result – at least on the civil side of the docket, dissent at the Court of Appeal level does not appear to be reliably correlated with dissent at the Supreme Court.

Join us back here tomorrow as we review the criminal docket.

Image courtesy of Flickr by Don Graham (no changes).

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