Today, we’re finishing our trip through the Court’s docket of civil constitutional law cases, 1990-2018.
Civil constitutional law cases have been comparatively uncommon on the Court’s docket from 2014 to 2019. The Court has heard only fifteen cases in all: one in 2014, two each in 2015 and 2016, five in 2017, three in 2018 and two in 2019.
By a narrow eight to six margin, the Court has agreed to hear more plaintiffs’ wins from the Court of Appeal than defendants’ wins.
Defendants have had a rough time once again in the relatively few cases they won below, suggesting that many of the cases were taken in order to reverse. From 2014 to 2019, defendants arriving at the Court on a win won only one of their cases while losing five.
Plaintiffs, on the other hand, nearly always succeeded in defending their Court of Appeal wins. From 2014 to 2019, plaintiffs who won below were seven wins and one loss at the Supreme Court.
Combining the data from these two charts, we find that defendants overall in the past five years are two wins and twelve losses at the Supreme Court. Across the entire twenty-nine years, defendants have won fifty-three cases while losing seventy-seven, a winning percentage of 40.77%.
Looking at the specific issues the Court addressed during these years, we find five due process cases, four preemption cases, three cases about the organization and authority of governmental entities and officials, two cases about equal protection and one First Amendment case.
Looking at the individual Justices’ votes for defendants in civil constitutional law cases, we find four each from Justices Liu and Kruger, three each from Justices Chin and Corrigan, two each by Chief Justice Cantil-Sakauye and Justice Cuellar and one from Justice Werdegar.
As for votes against constitutional law defendants, we have the Chief Justice and Justices Corrigan and Cuellar with twelve each. Justices Chin and Liu have cast eleven apiece. Justice Kruger has nine, Justice Werdegar has seven, and Justices Baxter and Groban have one apiece.
So where does all this leave us? As we noted above, defendants since 1990 have won only 40.77% of their civil constitutional law cases at the Supreme Court. Our table below reports the Justices who voted for defendants in more than 40.77% of their constitutional law cases. Justice Kaufman voted for the defendant in the only civil constitutional law case in which he participated before his January 31, 1990 retirement. Justice Brown supported defendants 61.11% of the time. Justice Kennard did 50.77% of the time. Justice Eagleson supported defendants in 50% of his cases. Justice Panelli was at 46.67%, Justice Chin is at 45%, Justice Baxter was at 44.92% and Chief Justice Lucas was at 41.86%.
Finally, we have the Justices who have been less likely to support defendants in these cases than the Court as a whole. Chief Justice George voted for defendants 39.64% of the time. Six more Justices were in the thirties – Justice Werdegar (39.42%), Arabian (38.46%), Moreno (36.73%), Corrigan (34.09%), Mosk (31.51%) and Kruger (30.77%). Justices Broussard (23.08%) and Liu (21.05%) were in the twenties. Chief Justice Cantil-Sakauye has supported defendants in civil constitutional law cases only fifteen percent of the time. Justice Cuellar has voted for defendants in 14.29% of his cases. Justice Groban voted against the defendant in the only civil constitutional law case he has participated in since joining the Court. Note the division among current members of the Court: six Justices are statistically less likely to support a defendant in a civil constitutional law case than defendants’ overall winning percentage, and only one is more likely to do so. This suggests that defendants’ winning percentage in these cases is likely to decline further in the next several years.
Join us back here later this week as we turn to a new topic.