This week, we’re taking a closer look at what kinds of cases wind up in the Court’s constitutional law docket, and whether the Court is more or less likely to reverse depending on who won below. Today, we’re reviewing the numbers for the criminal docket.
Yesterday, we showed that the Court has taken roughly equal numbers of conservative and liberal wins from the Court of Appeal on the civil side, but is considerably more likely to reverse conservative decisions. Similarly, the Court’s criminal law docket is almost evenly divided between cases won by the defendant below – 73 cases – and cases won by the prosecution below – 70 cases. But the results at the Supreme Court are quite different depending on who won below. From 1992 to 2017, the Court reversed only 24.29% of prosecution wins in criminal constitutional law cases, while it reversed 83.56% of defendants’ wins.
We review the yearly data for affirmance of prosecution wins in Table 450 below. The Court affirmed one decision in 1992, one in 1993, two each in 1995 and 1997, six in 1999, two in 2000, three per year in 2001 and 2002 and two in 2004. In 2005, the Court affirmed in two cases. The Court affirmed five times in 2006 and 2007, four in 2008, once in 2000, twice in 2010 and one in 2011. The Court affirmed four times in 2012, once in 2014, once in 2015, twice in 2016 and three times in 2017.
The Court didn’t reverse a single prosecution win in a criminal con law case for the years 1992 through 1998. The Court reversed once in 1999, twice in 2000, once per year in 2001, 2002 and 2003, three times in 2004 and once per year in 2006, 2007 and 2008. The Court reversed once in 2010, once in 2011, twice in 2016 and once in 2017.
We review affirmances of defendants’ wins from the Court of Appeal in Table 452. The Court affirmed in one case per year in 1992, 1994 and 1996. The Court affirmed three times in 2000 and once each year in 2001, 2002, 2003, 2006, 2010 and 2015.
The yearly data for reversal of defendants’ wins is reported in Table 453. The Court reversed in two cases per year in 1992 and 1993, four times in 1994, once in 1995, twice in 1996, three times in 1997 and 1998, and twice in 2000. The Court reversed once in 2001, five times in 2002, three times in 2003, once in 2004 and five times in 2005.
The Court reversed three defendants’ wins in 2006, two in 2007, three in 2008, two in 2009, three each in 2010 and 2011, six in 2012, two in 2013, and one per year in 2014, 2015 and 2017.
Overall, the Court reversed completely in 48.59% and reversed in part in another 8.45% of its 142 criminal constitutional law cases, for a total reversal rate of 57.04% – roughly comparable both to the overall reversal rate and to the reversal rate in civil constitutional law cases.
The Court’s reversal rate in criminal constitutional law cases has been relatively consistent across the entire period. The Court reversed in 53.33% of its cases from 1992 through 1995. The Court reversed 55.56% of the criminal constitutional law decisions it heard from 1996 through 2000. Between 2001 and 2005, the Court reversed in 58.82% of its 34 cases. Between 2006 and 2010, the Court reversed 48.57% of the constitutional law decisions on the criminal docket.
Since 2011, with the ideological split on the Court shifting, the Court’s reversal rate in criminal con law cases has picked up. Between 2011 and 2016, the Court reversed 73.08% of the time. Even adding in last year’s two reversals in five cases, the Court has reversed in 67.74% of the criminal constitutional law cases since 2011 – a rate noticeably higher than its trend.
Join us back here next Thursday as we turn our attention to a new issue.