Last week, we reviewed the primary theories of judicial decision making, including two – attitudinalism and legal realism – which are the foundation for empirical research into appellate decision making. Today, we begin our review of the data.
Between January 1, 2000 and December 31, 2015, the California Supreme Court published 1,602 decisions – 636 civil and 966 criminal, quasi-criminal, juvenile and disciplinary. We begin with two fundamental case identifiers – the case name and docket number.
We then identify a number of variables describing the case in the lower courts. First, we note the Superior Court or administrative board where the case originated, and (for the court cases), the trial judge(s). We note the Appellate Court (and in the case of the First and Second Districts, the Division). We’ll be interested in assessing what kinds of cases reach the Supreme Court, and what impact various events in the lower court have, so we note the basis for appellate jurisdiction (final judgment, certified question, writ petition, etc.), whether or not there was a dissent at the Court of Appeal and whether or not the Court of Appeal’s decision was published. We’ll be interested in tracking the Justices’ voting records in particular types of cases, as well as the evolving composition of the Court’s civil and criminal dockets, so we note the primary area of law for each case.
As we discussed last week, philosophical coding has been a controversial subject in the scholarship for decades; formalists reject its relevance completely, while attitudinalists argue that it’s the most important single variable for understanding and predicting judicial decision making. Our primary goal here is to build a tool useful in anticipating decision making for appellate practitioners, so we’re not so interested in classifying Justices as conservative or liberal per se. Although we use the conventional C/L coding for Court of Appeal decisions in the database, we class as a “conservative” decision in civil law nearly anything that favors the defense bar, regardless of which side the party is on. For example, a decision in favor of an insurer would be coded as conservative even in a declaratory judgment action where the insurer was the plaintiff. On the criminal side, things are simpler – decisions for the state are “conservative,” decisions for the defendant are “liberal.”
We add a number of variables describing the decision making process at the Supreme Court, beginning of course with the result and the vote. We’ll be interested in tracking the Court’s lag time in making decisions on both sides of the docket, so we note the date a petition for review was granted (in mandatory death penalty appeals, we treat the date on which counsel was appointed as the best proxy for the granting of a petition for review). We also note the date of oral argument, the date of the decision, and the number of days from grant to decision and argument to decision. Because the Supreme Court has encouraged the filing of amicus curiae briefs throughout our sixteen year period of study, we note the number of amicus briefs filed in each case. We’ll track the ups and downs of that number over time, and we’ll eventually try to determine just how much impact amicus briefs have on a party’s likelihood of prevailing. We also note the counsel arguing for the parties, as well as any amicus counsel given leave to participate in the argument by the Court.
We’ll be analyzing a number of questions about the length of the Court’s opinions, so we note the length in pages of the majority, concurrences and dissents. Later this year, we’ll be asking which Justices tend to write longer and shorter opinions, and what impact amicus briefs and dissents have on the length of the majority opinion.
Finally, we add a series of variables for each Justice: the Justice’s vote, whether or not he or she wrote a majority, concurrence or dissent (or signed someone else’s concurrence or dissent), and whether a Justice recused him- or herself in a case. Finally, we add a philosophical coding for each Justice’s vote. We’re working from a database of fifty different data points for each case, or just over 80,000 data points for the entire sixteen year period.
Data on the following Justices is included in the database:
From the beginning of our period in 2000 until last year, the Court consisted of six appointees of Republican governors and only one Democratic appointee. In 2015, with the retirement in the space of only three months of two of the Republican appointees, Justices Marvin R. Baxter and Joyce L. Kennard, the Court shifted to four Republican appointees and three Democratic appointees (all three by the current Governor, Jerry Brown). In cases where one or more members of the Court recuses themselves (or is unable to participate for some other reason), the Court frequently elevates Justices pro tem from the Court of Appeal. Because the Court uses a rotation system for the pro tem Justices, the impact of pro tems on the philosophical makeup of the Court varies from case to case and year to year. We’ll review the voting records of the pro tems later in the year, as part of our in depth discussion of the individual Justices’ records.
Join us back here tomorrow as we begin our journey with our first question – how have the Court’s civil and criminal dockets evolved over the past sixteen years in terms of reviewing final judgments, interlocutory appeals, writ petitions and certified questions?