Today, we’re continuing our ongoing series of posts looking at the Court’s performance over the years, one area of law at a time. This week, we’re looking at the Court’s history with civil constitutional law cases (for purposes of this analysis, we’re disregarding the constitutional law cases which arise in criminal cases).
Between 1990 and 1997, the Court decided fifty civil cases involving constitutional law – six in 1990, eight per year in 1991 and 1992, six in 1993 and 1994, eight in 1995, three in 1996 and five in 1997.
In Table 906, we review the cases according to which side won below. By a narrow margin, the Court decided more defense wins from the Court of Appeal than plaintiffs wins (twenty-two plaintiffs, twenty-four defendants). As usual, the small difference between the cases in this calculation and in the first calculation is accounted for by cases heard on certified question from the Ninth Circuit which had no winner “below.”
Looking at how defendants coming off a win at the Court of Appeal fared before the Supreme Court, the answer is – not very well. From 1990 to 1997, winning defendants won only nine of their Supreme Court cases while losing sixteen.
Plaintiffs who won their cases did much better at the Supreme Court, but still couldn’t break .500 in their winning percentage. Plaintiffs won ten cases but lost eleven between 1990 and 1997.
Combining the last two tables, we find that between 1990 and 1997, defendants in civil constitutional law cases won twenty while losing twenty-six.
Looking more closely at the specific constitutional law issues that the Court addressed, we find fifteen cases which involved the power and structure of government entities and public officials; fourteen cases involved due process issues, nine involved First Amendment issues and five involved preemption.
Turning to the individual Justices’ voting records, Justice Kennard cast the most votes for defendants in constitutional law cases with twenty-seven. Chief Justice Lucas was next with eighteen votes, Justice Baxter had seventeen and Justices Mosk, Arabian and Panelli all had fifteen votes.
Leading the Court during these years in most votes against constitutional law defendants was Justice Mosk was thirty-five. Chief Justice Lucas had twenty-five, Justice Arabian, Chief Justice George and Justice Baxter all had twenty-four and Justice Kennard had twenty-three.
Join us back here tomorrow as we continue to work our way through the constitutional law cases.