Yesterday, we looked at the year-by-year data on the civil side, asking whether the presence of a dissent at the Court of Appeal level is reliably correlated with one or more dissenters at the Supreme Court level.  Today, we’re turning our attention to the criminal side of the docket.

In Table 418, we compare the number of unanimous criminal decisions with a dissent below to the number of non-unanimous divided decisions.  Once again, there’s no clear, consistent relationship between dissent at the Court of Appeal and dissent at the Supreme Court.  For thirteen years, more unanimous criminal decisions had dissents below; in ten years, more non-unanimous decisions did.

In Table 419, we report the percentage share of unanimous and non-unanimous criminal decisions which had a dissent below.  Once again, dissent at the Court of Appeal level does not appear to be a reliable predictor of dissent at the Supreme Court.  In 1994, none of the Court’s unanimous criminal decisions involved a dissent below; 4% of the non-unanimous decisions did.  In 1995, 10.34% of the unanimous decisions were divided below and none of the non-unanimous decisions were.  In 1996, 3.85% of the unanimous decisions were divided below, but 12.5% of the non-unanimous decisions were.

For 1997, 12.5% of the Court’s unanimous criminal decisions had a dissent below, but none of the non-unanimous decisions did.  In 1998, the relationship flipped – 8% of the unanimous cases, 15% of the non-unanimous ones.  That relationship held steady for the two years following.  In 1999, 3.57% of the unanimous decisions and 15% of the non-unanimous ones were divided below, and in 2000, 7.89% of the unanimous decisions and 29.42% of the non-unanimous cases had dissents below.  In 2001, 8.33% of the unanimous decisions had a dissent below, but none of the non-unanimous decisions did.

For the years 2002 through 2006, the relationship held steady – divided decisions were a larger portion of the non-unanimous cases than of the unanimous cases.  In 2002, 10.87% of the unanimous decisions had a dissent, but 28% of the non-unanimous decisions did.  In 2003, 4.65% of the unanimous decisions had a dissent and 15% of the non-unanimous decisions did.  In 2004, 15.79% of the unanimous cases had a dissent below, but one quarter of the non-unanimous decisions did.  In 2005, none of the unanimous decisions had a dissent below, but 22.22% of the non-unanimous cases did.  In 2006, 3.23% of the unanimous decisions had a dissent below, but 13.64% of the non-unanimous decisions did.

In 2007, 19.23% of the Court’s unanimous criminal decisions had a dissent below; none of the non-unanimous decisions did.  In 2008, the numbers were 12.07% for unanimous decisions, 37.5% for non-unanimous decisions.  In 2009, 2.04% of unanimous decisions had a dissent below, but one quarter of non-unanimous decisions did.  In 2010, 8.47% of the unanimous criminal decisions were divided below, but 7.14% of the non-unanimous cases were.  In 2011, 10.81% of the unanimous decisions had a dissent below, but 21.43% of the non-unanimous cases did.  In 2012, 9.68% of the unanimous decisions had a dissent below, but only 6.67% of the non-unanimous cases did.

Curiously, the Court hasn’t had a non-unanimous criminal decision which featured a dissent at the Court of Appeal since 2012.  In 2013, 14.63% of the unanimous criminal decisions had a dissent below.  At 2014, 6.52% of the unanimous decisions did.  In 2015, no criminal decision, either unanimous or non-unanimous, involved a Court of Appeal dissent.  In 2016, 6.25% of the unanimous criminal decisions had a dissent, and last year, 10.71% did.

Join us back here next Thursday as we continue looking at the Court’s experience with dissent at the Court of Appeal level.

Image courtesy of Flickr by Sheila Sund (no changes).