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.

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Last time, we reviewed the share of the Supreme Court’s civil caseload made up of decisions with a dissenter at the Court of Appeal.  Now let’s look at the criminal cases.

It turns out dissenters are even less important on the criminal side.  In 1990, only 1.25% of the criminal docket had a dissenter below.  The share rose to 10% by 1993, but immediately fell back into single digits for five of the next six years.  The share of cases with dissents below rose slightly in the decade following; between 2000 and 2009, the share was between ten and twenty percent five times and in single digits five times.  In 2010, the share was 8.22%.  It rose to 11.76% in 2011 and 12% in 2013 but fell to 5.45% in 2014 and 5.77% in 2016.  In 2015, none of the Court’s criminal cases had a dissenter below.  In 2017, the share was 7.14%.  In 2018, it was 10%.  In 2019, only 6.67% of the Court’s criminal cases had a dissent below.  So far in 2020, the share in 15.38%.

Join us back here next week as we turn our attention to new issues.

Image courtesy of Pixabay by USA-Reiseblogger (no changes).

Last week we looked at the frequently heard claim that getting Supreme Court review of an unpublished decision of the Court of Appeal is a hopeless task.  This week, we’re looking at a similar bit of conventional wisdom – the Supreme Court doesn’t review unanimous decisions from the Court of Appeal.

In the table below, we report the year-by-year percentage of the Court’s civil decisions which had a dissenter at the Court of Appeal.  In other words, if it’s true that the Court doesn’t review unanimous decisions, we would expect the graph line to be at or near 100% every year.

In fact, it’s nowhere close.  Between 1990 and 1993, the share of the civil docket with dissents below was less than 20% every year.  It rose a bit to 25.49% n 1994, 21.05% in 1995 and 20% in 1996, but then fell below 20% and stayed there until 2008.  Indeed, in 1998, 2002, 2003 and 2005, less than one in every ten civil cases had a dissent below.  The share rose to 22.5% in 2008, but then fell to 9.09% in 2009 and 7.14% in 2010.  There was a two-year upwards blip beginning in 2011 to 27.27% in 2011 and 23.08% in 2012, but then it returned to long-term trend, below 20%.  In 2017, only 19.05% of the Court’s civil cases had a dissent below.  In 2018, it was 12.12%.  Although the share rose to 20.83% in 2019, it has fallen back to single digits so far in 2020: 7.14%.

Join us back here next time as we review the Court’s criminal docket.

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Last time, we showed that for the most part since 1990, anywhere from twenty to forty-five percent of the Court’s civil decisions have arisen from unpublished decisions at the Court of Appeal.  This time we’re looking at the Court’s criminal docket.

Unpublished Court of Appeal decisions are far from the exception in criminal cases – they’re the rule.  In 1991, 91.25% of the Court’s criminal decisions were unpublished below.  That fell to 70% by 1993.  Two years later, the unpublished portion was 81.63%, but after that, it settled in for the most part in the 45-65% range.  In 1999 and 2000, the unpublished portion was 45.83% and 49.09%.  That rose to 58.73% in 2003, 58.9% in 2004 and 59.02% in 2005.  It rose to 61.64% in 2010 and 70.59% in 2011, but fell back for several years after that: 51.95% in 2012, 64% in 2013, 61.82% in 2014, 54.55% in 2015, 59.62% in 2016 and 45.24% in 2017.  In 2018, 64% of the Court’s criminal decisions were unpublished below.  In 2019, 83.33% were.  So far in 2020, 61.54% of the Court’s criminal decisions were unpublished below.

Join us back here next week as we address another bit of conventional wisdom about Supreme Court review.

Image courtesy of Pixabay by mbraun0223 (no changes).

One bit of conventional wisdom that’s frequently heard about appellate review in California is that if a Court of Appeal opinion isn’t published, seeking Supreme Court review is a hopeless task.  This week, we’re looking at the data to see if that’s true – civil cases in this post, criminal in the next.

The short answer is – it isn’t.  In 1990, one-third of the Court’s civil cases were unpublished below.  That dropped to 15% in 1991 but was between 25 and 45% from 1992 to 2005.  In 2006, the unpublished share was 22.64%, and in 2007 it dropped a bit to 21.43%.  In 2008, it dropped to its lowest level: 12.5%.  But then it headed upwards again.  The unpublished share was 20.45% in 2009, 28.57% in 2010, 30.3% in 2011 and 31.25% in 2013.  It’s been down just a bit since then, but still significant: 17.39% (2014), 12.5% (2015), 19.44% (2016), 21.43% (2017), 21.21% (2018), 29.27% (2019) and 28.57% so far this year.

Join us back here next time as we address the Court’s criminal cases.

Image courtesy of Pixabay by Scholie (no changes).

Today, we’re reviewing Justice Groban’s participation in oral arguments in criminal cases for patterns.  Once again, Justice Groban is relatively closely aligned with the majority in most cases.

Continue Reading What Are Justice Groban’s Question Patterns When He Disagrees With the Majority in Criminal Cases?

This week we’re concluding our review of the individual Justices’ question patterns during oral argument by looking at the record of Justice Groban since he took his seat in 2019.  We begin as usual with civil cases.

Continue Reading What Are Justice Groban’s Question Patterns When He Disagrees With the Majority in Civil Cases?

When Justice Kruger votes with the majority in a criminal case, she follows the expected pattern, more heavily questioning the losing party.  When she joins the majority in an affirmance, she averages 2.38 questions to appellants and 1.91 to respondents.  When she joins the majority in a reversal, she averages 3.6 questions to respondents and 3 to appellants.  When she joins the majority in a split decision, she averages 1.77 questions to respondents and 1.68 to appellants.

Continue Reading What Are Justice Kruger’s Question Patterns When She Disagrees With the Majority in Criminal Cases?

We determined last time that Justice Cuellar tends to more heavily question appellants than respondents in civil cases regardless of how the majority is leaning.  This time, we’re looking at the data for criminal cases.

Continue Reading What Are Justice Cuellar’s Question Patterns When He Disagrees With the Majority in Criminal Cases?