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).