In our last post, we reviewed the accuracy of the often-heard suggestion that the Supreme Court only hears cases which drew a dissent at the Court of Appeal. We discovered that with only a few exceptions, in the typical year only ten to twenty percent of the Court’s civil cases involved a dissent at the Court of Appeal. So what about the criminal docket?
In Table 414, we report the yearly total cases in the criminal, quasi-criminal and disciplinary docket which involved a dissent at the Court of Appeal. Only one criminal case decided in 1994 involved a dissent below. Three per year did in 1995, 1996 and 1997. In 1998, the Court decided five criminal cases which were non-unanimous below. In 1999, the Court decided four. The following year, the Court decided eight non-unanimous criminal cases, but decided only four in 2001.
In 2002, the Court decided twelve criminal cases involving dissents below. The Court decided five such cases in 2003, but thirteen in 2004. The Court decided four non-unanimous cases in 2005 and 2006, ten per year in 2007 and 2008, and four again in 2009. The Court decided six non-unanimous criminal cases in 2010, seven per year in 2011 and 2012, and six in 2013. The Court decided three non-unanimous cases per year in 2014, 2016 and 2017, but none at all in 2015.
Turning to Table 415, we report the data as a percentage of the total criminal caseload. What we see here is that non-unanimous decisions are an even less important factor in the criminal docket than they were on the civil side. In 1994, only 2.44% of the criminal docket involved a dissent below. In 1995, that figure rose to 6.12%. In 1996, 7.14% of the criminal cases were non-unanimous decisions below. In 1997, 6.82% were.
In 1998, 11.11% of the Court’s criminal docket involved dissents below. In 1999, 8.33% did, and in 2000, that figure rose to 14.55%. For the following year, the percentage of non-unanimous decisions moved around a fairly narrow band: 6.9% in 2001, 16.9% in 2002, 7.94% in 2003, 17.81% in 2004, 6.56% in 2005, 7.55% in 2006, 16.39% in 2007 and 15.15% in 2008.
Non-unanimous cases fell to 6.56% of the criminal docket in 2009 and 8.22% in 2010. After a brief spike to 13.73% in 2011, 9.09% in 2012 and 12% in 2013, the level of non-unanimous cases returned to its average level: 5.45% in 2014, 5.77% in 2016 and 7.14% in 2017 (there were no non-unanimous criminal cases in 2015).
Does a dissent help in getting a petition for review to stand out from the crowd? Of course. But the data shows that it’s simply not true, either on the civil or criminal side, that the Supreme Court seldom reviews unanimous Court of Appeal decisions. In most years, the Court reviews far more unanimous decisions than not.
Join us back here next Thursday as we continue our analysis.