Two weeks ago, we addressed the question of how common cases with a dissent at the Court of Appeal were on the Supreme Court’s docket. Our analysis illuminated the issue of whether it’s true that there’s no point in pursuing a petition for review from a unanimous Court of Appeal decision.
This week, we’re digging a bit deeper on a related question: are divided decisions from the Court of Appeal more frequently reversed? The result might help us choose between two possibilities about divided Court of Appeal decisions that wind up at the Supreme Court: does the Court take them because a majority agrees with the dissenter, or does the Court merely regard the dissent as some evidence that reasonable judges can disagree about the issue presented?
We address two data points: first, the percentage of divided and unanimous Court of Appeal decisions reversed outright. Second, what we’ll call (for lack of a better term) Court of Appeal decisions “not affirmed” – outright reversals plus split decisions (affirmed in part, reversed in part), for divided Court of Appeal decisions and then unanimous ones.
First, we compare straight reversals. Unanimous civil decisions from the Court of Appeal have been more frequently reversed in nine of the past thirty-one years. Unanimous decisions led in five years during the nineties, but things have stabilized a bit since then. Still, this is a lesser difference than we saw in our analysis of the same question at the Illinois Supreme Court.
Next, divided and unanimous Court of Appeal decisions not affirmed – unanimous decisions were more likely to be disturbed at the Supreme Court in nine of the past thirty-one years. But take a look at Table 1475 – even in years when divided decisions were ahead, the difference was frequently very slight. This data seems to offer support for the tentative conclusion that at least on the civil side, the Supreme Court doesn’t really pay a lot of attention to Court of Appeal dissents.
Join us back here next time as we address the Court’s criminal docket.