One of the principal distinctions between my two principal subjects of study – the Illinois and California Supreme Courts – is that Illinois has no system for replacing Justices when the Court is short by one or more members, either because of recusal or due to the retirement of a Justice who has not yet been replaced. When one or more Justices cannot participate in Illinois, a reduced Court proceeds to decide the case. But in California, Article VI, Section 6(e) of the Constitution provides that when the Supreme Court is short one or more Justices, the Chief Justice assigns a Justice from the Court of Appeal to sit as a Supreme Court Justice Pro Tem.
This opens up interesting issues for our ongoing study of judicial behavior. Many scholars have argued that it’s the fact that appellate Justices serve together for an extended period which causes “dissent aversion” – Justices declining to vote against a result they don’t, in fact, approve of. So we might expect pro tem Justices to be more likely to dissent from the Court’s decisions than permanent Justices are.
In Table 161 below, we report the likelihood that pro tem Justices will vote with the majority, year by year, between 2000 and 2008. Six pro tem Justices participated in civil cases in 2000. Eight sat in 2001, four in 2002, eight in 2003, seven in 2004, nine in 2005, ten in 2006 and four in 2007. For 2000, 85.71% of the pro tem votes were with the majority. For 2001, eighty per cent of the votes were majority. For 2002, all votes were with the majority. In 2003, 90% of the pro tem voted were majority. That figure fell to 75% in 2004, but increased to 91.67% in 2005 and 100% in 2006 and 2007. In 2002, one pro tem wrote a concurring opinion. Pro tem Justices wrote dissents in 2001 and 2003. Other pro tem Justices joined dissents written by other Justices in 2000 and 2004.
For the entire period, ninety percent of the pro tem votes were cast for the majority – sixty-three for the majority, seven for the minority. The percentage of votes for the majority was less among permanent Justices, but only slightly less. For civil cases during the years 2000 through 2007, permanent Justices cast 2,423 votes for the majority and 286 for the minority – a percentage of 89.44% majority votes. So far from being more likely to disagree with their colleagues, at least for the first eight years of our period, pro tem Justices were less likely to dissent.
Join us back here tomorrow as we turn our attention to the Court’s civil cases between 2008 and 2016.