Last week, we analyzed whether the California Supreme Court’s pro tem Justices have been more or less likely to vote with the majority than permanent members of the Court since 2000. This week, we’re looking at a related issue. What impact does the presence of a pro tem Justice on the Court for a particular case have for the ideological spread of the Court? Over time, is a pro tem a net gain for the plaintiffs or the defendants? Pro tem Justices have at times been a source of controversy for the Court with some analysts concluding that pro tems tend to vote disproportionately with the Chief Justice.
First, a few ground rules for our calculations. On several occasions since 2000, retiring Justices have voted in cases which began before their retirement became effective, rather than requiring the Court to start from scratch with a newly appointed Justice. We count votes cast after the Justice has retired as votes by a pro tem Justice. Also, we count vote by vote, not case by case. For example, if a case includes two pro tem Justices, and a particular Justice and the two pro tems all vote the same way, that counts as two agreeing votes for purposes of agreement rates.
Not surprisingly, the Justices who have cast the most votes on courts involving at least one pro tem vote since 2000 are, in order, Justices Werdegar, Chin, Kennard and Baxter. If we leave aside Justices Cuellar and Kruger, both of whom cast two votes in civil cases on courts with pro tem Justices in 2016, pro tems were closest in their voting patterns in civil cases to Justice Moreno (95.4% agreement) and Justice Liu (94.59%). Third was Justice Werdegar, with an agreement rate of 92.25%. Former Chief Justice George was fourth at 91.46%. Chief Justice Cantil-Sakauye was next, agreeing with pro tems in 88.68% of civil cases, followed by Justices Kennard and Corrigan (87.6% and 87.18%, respectively) and Justices Chin and Baxter (86.18% and 86.09%). The two Justices least likely to agree with pro tem Justices in civil cases were Justice Brown (79.07% agreement) and Justice Mosk (70% agreement).
Join us back here tomorrow as we investigate the agreement rate between pro tem Justices and the other members of the Court in criminal cases since 2000.