How Have Defendants In Employment Law Cases Fared at the Supreme Court (Part 2)?

Last time, we kicked off our review of the Court’s recent history with employment law cases.  Today and tomorrow, we’re reviewing the data for the years 2000 to 2018.

Between 2000 and 2009, the Court decided 21 employment law cases won by plaintiffs below and 29 cases won by defendants.

Next, we review the Supreme Court won-loss record of employment law defendants who prevailed at the Court of Appeal.  Between 2000 and 2009, winning defendants won fourteen cases at the Supreme Court but lost fifteen.

Employment law plaintiffs who had won at the Court of Appeal fared even worse, winning eight cases while losing thirteen.

Overall – meaning without accounting for the result at the Court of Appeal – employment law defendants won twenty-seven cases between 2000 and 2009 while losing twenty-three.

Next, we look at the data for the types of employment law issues the Court considered.  Between 2000 and 2009, the Court decided thirty-two cases primarily involving tort and contract liability, eight cases involving discrimination issues, only eight cases involving wage/hour and collective bargaining issues and four in our catchall category.

From 2000 to 2009, the Justices who most often supported the defendant’s position in employment law cases were Justices Baxter and Chin at 28 votes apiece.  Chief Justice George cast twenty-five votes for defendants and Justices Kennard and Werdegar each cast twenty-one votes for defendants.

The Justices who cast the most votes against employment law defendants’ positions were Justices Kennard and Werdegar at twenty-nine votes apiece, followed by Chief Justice George at twenty-six votes, Justice Moreno at twenty-five votes and Justices Chin (23) and Baxter (22 votes).

Finally, we reach the end of our period.  From 2010 to 2018, the Court decided thirty-five employment law cases – nine in 2010, four in 2011, three in 2012, three more in 2013, four in 2014, two in 2015, three each in 2016 and 2017 and four in 2018.  From 1990 to 2018, the Court has decided 109 employment law cases.

In recent years, the Court’s employment law docket has consisted overwhelmingly of cases won by defendants below – twenty defendants’ wins since 2010 to only ten cases won by plaintiffs below.  Since 1990, the Court has decided forty-six employment law cases won by the plaintiffs below to fifty-six defendants’ wins.

Join us back here tomorrow as we review the rest of the data for 2010-2018 as well as giving an overview of which Justices were more (and less) likely to side with defendants in employment law cases than the Court as a whole.

Image courtesy of Flickr by TDLucas5000 (no changes).

How Have Employment Law Defendants Fared at the Supreme Court – Part 1 of 3 (1990-1999)

 

For the next three posts, fresh off our examination of the Court’s tort decisions, we’re going to take a close look at the cases and voting in the area of employment law.

Between 1990 and 1999, the Supreme Court decided 22 employment law cases – two in 1990 and 1992, one in 1993, three per year in 1994, 1995 and 1996, two in 1997, four in 1998 and two in 1999.

During the 1990s, the employment law cases the Supreme Court was taking were overwhelmingly plaintiffs’ wins at the Court of Appeal – 15 plaintiffs wins for the decade to only 7 defense wins.  Between 1990 and 1994, the Court accepted eight plaintiffs wins and zero defendants’ wins.

Because the Court took relatively few defendants’ wins, our chart of how those defendants fared at the Supreme Court is based on a very small sample size.  For the decade – more precisely, from 1995, when the Court accepted its first defense win, to 1999 – defendants who won below went 3-4 at the Supreme Court.

Plaintiff wins from the Court of Appeal were more evenly spread across the decade.  During the nineties, plaintiffs who won at the Court of Appeal won eight times and lost seven at the Supreme Court.

Overall, adding together defendants who successfully defended Court of Appeal wins and those who prevailed despite losing below, defendants were ten wins and twelve losses in employment law cases between 1990 and 1999.

Most of the Court’s employment law cases during these years related to issues of tort and contractual liability between employees and employers.  Fourteen cases involved liability issues, five involved discrimination, and three involved wage and hour claims and collective bargaining issues.

During the 1990s, Justice Baxter led the Court in votes for employment law defendants’ positions with ten.  Chief Justice George had nine, Justice Mosk had eight and Justice Arabian had seven.

The Court leaders in votes against the position of employment law defendants were Justice Kennard with sixteen votes, Justice Mosk at thirteen, Chief Justice George at eleven and Justice Baxter at ten.

The Court’s employment law docket shot up considerably during the first decade of the century, as the Court decided fifty-two cases.  The Court decided five cases in 2000, two in 2001, six per year in 2002, 2003 and 2004, four in 2005, six in 2006, four in 2007, six in 2008 and seven in 2009.

 

Join us back here next week as we continue our trip through the employment law docket.

Image courtesy of Flickr by Jeff P (no changes).

How Have Tort Defendants Fared at the Supreme Court (Part 3)?

Last week, we reported the first two thirds of the data regarding the Supreme Court’s handling of tort cases since 1990.  Today, we’re looking at the data for the years 2010 to 2018.

During the most recent period, the Court has decided eighteen cases won by defendants at the Court of Appeal.  The Court has affirmed six of those decisions, while reversing twelve.  Across the entire period, winning defendants have won 41 while losing 42, for a winning percentage of .4767.

Plaintiffs who had won at the Court of Appeal were below .500 too, although by not quite so much – plaintiffs won seven while losing ten.  Between 1990 and 2018, winning plaintiffs won 45 cases, but lost 69, a winning percentage of .3947.

Defendants overall were below .500 for the most recent nine years, winning sixteen while losing nineteen.  For the period 1990 to 2018, defendants have won 110 tort cases while losing 87 – a winning percentage of .5584.

Next, we review the areas of tort law in which the Court’s cases fall.  Between 2010 and 2018, the Court decided fifteen cases involving procedural issues, thirteen cases involving tort duties, and ten involving liability issues.  Since 1990, the Court has decided sixty cases involving duty, 53 involving liability and 86 involving procedural issues.

In Table 875, we review the individual Justices’ votes for Tort Defendants.  The top finishers were Justices and Corrigan (21 votes each), Justice Cantil-Sakauye (17) and Justices Werdegar and Chin (14 votes each).

Next, we report the total votes against insurer defendants.  Justice Werdegar delivered the most at 18.  Justices Chin, Werdegar and Corrigan were second at 17 votes apiece.

Next, we answer the question Which Justices were more likely to support a tort defendant than the Court as a whole?  There are only five, and only two are still active Justices: Justice Arabian supported defendants in 63.27% of cases, Justice Baxter was 60.75%, Justice Corrigan was 58.06%, Justice Chin was 57.43%, and Justice Broussard was 57.14%.

Many more Justices were below the courtwide average.  Justice Brown supported tort defendants in 56.58% of cases.  Chief Justice George was 55.35%, Justice Panelli was 55.17%, Justice Moreno was 52.94%, Justice Kennard was 51.4%, Justice Werdegar was 50.3%, and Chief Justice Cantil-Sakauye and Justice Eagleson were 50% apiece.  Justice Lucas supported defendants 48.98% of the time.  Justice Liu did so 46.43% of the time.  Justice Kruger and Justice Cuellar supported the majority 40% of the time, but Justice Mosk did so in only 28% of cases.

Meet us back here next time as we turn our attention to the data on employment law.

Image courtesy of Flickr by Benson Kua (no changes).

How Have Tort Defendants Fared at the Supreme Court Since 1990 (Part 2 of 3)?

Last time, we began our in-depth review of the Court’s record in 1990 in tort cases.  Today, we’re continuing that analysis.

Between 2000 and 2009, the Court’s tort docket continued to be mostly comprised of cases won by the plaintiffs below – 42 plaintiff wins, 33 defense wins.  Although the two sides’ contributions were tied in several years, in only one of these ten years were there more defense than plaintiffs’ wins – 2000 (1-3).  2002, 2004, 2006 and 2009 were all tied.

Next, we review the data for defendants’ won-loss record in cases where they had prevailed before the Court of Appeal.  Between 2000 and 2009, these defendants fared well, winning 21 and losing only 12.  Only in 2005 did these defendants lose more than they won.

Next we look at the tort plaintiffs who won below.  These plaintiffs kept things even for the first half of the decade, winning 14 and losing 14.  But things took a mild dive in the second half, winding up with nineteen wins and twenty-three losses.  Winning plaintiffs were 0-3 in 2009, providing most of that margin.

How did tort defendants do overall for the decade, disregarding who won the case below?  Almost exactly what they’d done the previous decade – winning 44 and losing 30 for a winning percentage of .5946.  During the 90s, tort defendants won 59.13% of their cases.

During this decade, procedural issues remained prominent in the Court’s docket, and cases raising issues of duty were comparatively rare.  In all, 32 of the Court’s tort cases primarily involved procedural issues, 24 were liability issues, and only 19 raised duty of care issues.  Two cases fell into none of these categories.

Next, each Justice’s total votes for tort defendants each year.  For the decade, the four Justices casting the most votes for defendants were Justice Baxter (47 votes), Justices Werdegar and Chin (41) and Chief Justice George (40).

The greatest numbers of votes against tort defendants during the decade were by Chief Justice George and Justice Werdegar (34 votes each), Justice Kennard (31) Justice Chin (30) and Justice Moreno (29).

And now, the most recent period – 2010-2018.  In all, the Court decided thirty-eight tort cases: four in 2010, six in 2011 and 2012, two in 2013, five in 2014, one in 2015, six in 2016, three in 2017 and five in 2018.

Plaintiffs’ wins from the Court of Appeal were still more likely to be heard and decided by the Court than defendants’ wins.  The Court decided nineteen cases won by the plaintiff between and sixteen won by the defendants.

Join us back here next week as we bring the tort data up to present day (including identify which Justices are more likely to support defendants’ positions than the entire Court on average is).

Image courtesy of Flickr by Ken Lund (no changes).

How Have Tort Defendants Fared at the Supreme Court Since 1990 (Part 1)?

Last week, we reviewed the data on how the Supreme Court has handled insurance law cases since 1990 – both what sorts of cases the Court decides, which side typically prevails, and the individual Justices’ voting records on insurance cases.  This week (and next Thursday), we’ll be asking the same questions for the Court’s tort law cases, 1990-2018.

We begin with the foundational question: how many cases primarily involving tort law issues has the Court decided each year?  During the nineties, the Court decided a total of ninety-three tort cases: four in 1990, seven in 1991, nine in 1992, ten in 1993, twelve in 1994, nine in 1995, only one in 1996, ten in 1997, eighteen in 1998 and thirteen in 1999.

In the next Table, we divide these cases according to which side prevailed below (cases taken on certified question from the Ninth Circuit are omitted from this calculation).  What we see is that during the nineties, the Court tended to take significantly more cases won by plaintiffs below (57) than defendants (35).  Only in 1992 and 1995 were there more defendants’ wins on the docket.  We’ll see a clue as to why the Court took more plaintiffs’ wins in a few moments.

Next, we ask how often defendants who won at the Court of Appeal succeeded in winning again at the Supreme Court.  The answer is not that well – this group of defendants won sixteen cases but lost nineteen.

But plaintiffs did far worse.  In only three of ten years were the plaintiffs even breaking even in the win-loss column: 1991 (4-1); 1996 (1-0) and 1999 (4-4).  For the entire decade, plaintiffs who won below had nineteen wins at the Supreme Court to thirty-nine losses, suggesting that the Court’s preference for deciding tort cases won by plaintiffs below during this period might have been at least partially motivated by a desire to cut back on aspects of California tort law.

Next, we’re looking at tort defendants’ overall won-loss record for the nineties, disregarding which side won below.  Not surprisingly, the defendants did quite well, winning 55 cases while losing only 38 – a winning percentage of .5913.  Particularly lopsided years included 1990 (4-0); 1993 (9-1) and 1998 (12-6).

Next, we divide up the docket by the nature of the question presented into three categories: “duty,” “liability,” and “procedural.”  For the entire decade, procedural issues dominated the other categories: there were forty-two cases whose primary issue was procedural, thirty primarily involving questions of duty, and twenty-one involving liability issues.

During the nineties, the Justices casting the most votes for defendants in tort cases were Justice Baxter (52 votes), Chief Justice George (46), Justice Kennard (45) and Justice Arabian (31).

Below, we report each Justice’s yearly votes against tort defendants.  The four highest totals for the decade were Justices Mosk (67 votes), Kennard (48), Baxter (37) and Chief Justice George (35).

For our second decade, 2000-2009, the case’s production of tort law decisions dropped from ninety-three for the years 1990-1999 to 76 from 2000-2009.  The Court decided four cases in 2000, nine in 2001, fourteen in 2002, eight in 2003 and 2004, seven in 2005, two in 2006, twelve in 2007, five in 2008 and seven in 2009.

Join us back here tomorrow as we continue our review of the Court’s tort decisions.

Image courtesy of Flickr by Onasill Bill Badzo (no changes).

Reviewing the Justices’ Voting Records in Insurance Law Cases, 1990-2018

Last time, we reviewed how the insurance industry has fared over the past twenty-nine years as a party to litigation at the California Supreme Court.  This time, we’re turning to the voting records of individual Justices: irrespective of whether the insurer was plaintiff or defendant, whether the case involved coverage or liability issues, and whether the insurer ultimately won or lost, how often did each Justice vote for an insurer party.

In Table 845, we report voting for insurer parties between 1990 and 1999.  Although in most years, the number is limited to one or two votes, what stands out here is 1992, when the Court decided six insurance law cases.  Chief Justice Lucas and Justices Panelli, Arabian and Baxter supported the insurer’s position all six times, and Justice George did so in five cases.

In Table 846, we report votes against insurer parties over the same period.  In many of the ten years, these numbers trend a bit higher than votes for – Justices Broussard and Mosk voted against insurers four times in 1990, Justices Kennard, Mosk, George and Wedegar did so three times in 1995, and Justices Kennard, Mosk and Baxter voted against insurers four times in 1997.

Next, we report yearly votes for insurer parties between 2000 and 2009.  Justices Kennard and Werdegar supported insurer positions four times in 2001.  All the active Justices voted with insurers three times in 2003.  In 2005, Chief Justice George and Justices Baxter and Moreno voted the insurers’ position in four cases.  In 2009, every active Justice – Chief Justice George and Justices Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan – supported insurers three times.

Votes against insurers were relatively constant for these years, except for 2004, when the Chief Justice and Justices Werdegar and Moreno voted against insurers three times.  The following year, Justice Kennard sided against insurers four times.

As we noted in our last post, insurance law cases have been quite rare in the Court’s docket, so of course votes for and against have been flat too.  For the entire period, Justices Chin and Corrigan supported insurers in four cases each, and Chief Justice Cantil-Sakauye and Justices Werdegar and Liu did so in three cases apiece.

Votes against insurers are reported below.  Justices Chin and Corrigan voted against insurers seven times apiece.  Justice Werdegar did so six times.  Chief Justice Cantil-Sakauye voted against insurers’ positions in five cases, and Justices Kennard, Baxter and Liu did so four times.

Since 1990, insurers have had a win-loss record of 41-38 at the Supreme Court, for a winning percentage of 51.9%.  We calculate the percentage of total cases in which each Justice voted the insurer’s position.  We then divide the Justices into two groups: Justices who voted the insurers’ position more often than the Court as a whole, and Justices who were less likely to support insurers’ position than the majority.

During 1990 (his last year on the Court), Justice Kaufman supported insurers in 100% of his cases.  Justice Arabian supported insurers 70% of the time.  Two Justices were in the sixties – Justice Panelli at 64.71% and Chief Justice Lucas, 63.64%.  Four Justices were narrowly above the courtwide winning percentage: Justice Baxter at 58.82%, Justice Brown, 56.67%, Justice Chin, 54.55% and Chief Justice George at 53.13%.

Finally, below we show the Justices’ rates who were less likely than the courtwide average to vote for the insurers’ position.  Justice Moreno supported insurers half the time.  Six Justices were in the forties: Justice Kennard at 47.3%, Justice Werdegar, 46.55%, Justice Corrigan, 45.46%, Justice Liu, 42.86% and Justices Kruger and Cuellar, 40%.   Chief Justice Cantil-Sakauye has supported insurers in 37.5% of their cases, and Justice Mosk did so 31.58% of the time.  Justice Eagleson supported the insurers’ position in 25% of his cases, and Justice Broussard never did.

The Justices’ voting records in insurance law cases suggest that the industry’s below-.500 record is likely to continue for the next several years.  Only Justice Chin among the active Justices voted for insurer parties at a higher rate than the Court, while the Chief Justice and Justices Corrigan, Liu, Kruger and Cuellar were all less likely to vote for insurers than the Court.

Join us back here next week as we review parties’ record in another area of law.

Image courtesy of Flickr by Becky Matsubara (no changes).

How Have Insurers Been Faring at the California Supreme Court Since 1990?

Late last week, we inaugurated a new biweekly series of posts on The Appellate Strategist analyzing the American Law Institute’s new Restatement of the Law of Liability Insurance.  Since this week we’re beginning a new series taking a deep dive on the Court’s docket in various important areas of law, I thought we’d begin with insurance law cases.  Today, we’re looking at how many insurance cases the Court typically decides in a year; how those cases shake out between plaintiff or defendant insurers; how many primarily involve coverage issues, liability issues, or something else; and most importantly of all – what is the insurance industry’s won-loss record at the Court since 1990.  One caveat before we begin – obviously, insurers are heavily involved in a great many more cases than just the ones in which one or more insurer appears on one side or the other of the “v.”  For our purposes here, we’re concentrating on litigation with an insurance company as a named plaintiff or defendant.

In Table 836, we track (1) the yearly number of insurance law cases decided by the Court; (2) the number that involved insurer plaintiffs; and (3) the number involving insurer defendants for the years 1990-1999.  Of course, from time to time the Court decides insurance law cases with one or more insurers as both plaintiff and defendant – that’s why, for some years, adding our data for plaintiffs and defendants comes up with more cases than our data for total number of cases.

The trend level of total cases for this period was roughly three to four a year, with not infrequent spikes to as high as 6 (1992 and 1997) or valleys to zero (1996).  For the decade, the Court decided thirty-two insurance cases.  Plaintiff insurers were relatively rare – only thirteen for the decade, and none at all in 1994, 1996, 1998 or 1999.  Insurers were defendants nineteen times.

The insurance docket picked up a bit of speed from 2000 to 2009, as the Court decided thirty-six insurance cases.  The yearly trend number was about the same – three to four cases a year – with spikes to six in 2001 and 2005.  Plaintiff insurers were comparatively rare – only nine in the 36 cases.  Twenty-eight cases involved insurer defendants.  Defendants cases were relatively steady throughout the decade.

Between 2010 and 2018, on the other hand, the Court’s insurance docket has been down.  For those years, the Supreme Court has decided only eleven cases – five involving insurer plaintiffs, six involving insurer defendants.

Now, we go back to the beginning and divide the cases into matters primarily involving coverage issues, matters primarily about liability, and issues that don’t fit neatly into either category.

In the nineties, coverage cases heavily outnumbered insurance cases primarily involving liability issues – 21 coverage, 11 liability.

Between 2000 and 2009, coverage was virtually the only thing on the Court’s insurance law docket.  In all, twenty-eight of the Court’s insurance cases were primarily about coverage issues.  Only four involved liability questions, and another four were “other.”

As noted above, insurance cases have been rare on the Court’s docket during this decade, but coverage cases still dominated – ten coverage, one liability and no “other.”

Next, we arrive at the most crucial number of all: insurers’ winning percentage.  For the 1990s, insurers won twenty cases and lost twelve – a winning percentage of 62.5%.

One hears fairly often in the defense bar that California is not an especially friendly venue for insurers.  As the membership of the Court changed over the past two decades, we see some support for that claim.  Between 2000 and 2009, insurers’ won-loss record dropped below .500 – 16 wins, 20 losses, for a winning percentage of 44.44%.

Things have ticked up only slightly in the most recent decade.  The Court has decided eleven insurance cases, with the insurers winning five and losing six – a winning percentage of 45.45%.

Tomorrow, we’ll continue this work by consulting the individual Justices’ voting records in insurance law cases.

Image courtesy of Flickr by Damian Gadal (no changes).

Reviewing the Justices’ Agreement Rates in Divided Criminal Cases, 2014-2018

Today, we’re concluding our series of posts on agreement rates among the Justices with a look at the numbers for the years 2014 through 2018.

Justice Corrigan’s closest matches were two Justices who cast only a few votes in 2014 prior to retirement: Justices Kennard and Baxter, who were both at 100%.  Justice Corrigan was at 85.71% with the Chief Justice, and 83.67% with Justice Chin.  Justices Corrigan and Kruger had an agreement rate of 72.97%.  Three agreement rates were in the sixties – Justice Werdegar at 65.71%, the pro tems at 62.5%  and Justice Cuellar at 62.16%.  Justice Corrigan and Justice Liu had an agreement rate of 62.5%.

Justice Kennard cast only five qualifying votes (criminal cases with at least one dissenter) during her final year of 2014.  Five of her colleagues agreed with every one of those votes, and Justice Liu agreed with four of five.

Justice Kruger’s closest match during these years was Justice Corrigan at 72.97% and Chief Justice Cantil-Sakauye at 70.27%.  Two more Justices were in the sixties – Justice Werdegar at 69.75% and Justice Cuellar at 64.86%.  Justices Chin and Liu was both at 56.76%, and Justice Kruger’s agreement rate with the pro tem Justices was 42.86%.

Justice Werdegar’s closest matches (aside from Justices Kennard and Baxter) were Justice Cuellar at 78.26% and Justice Liu at 71.43%.  Three Justices were in the sixties – Justice Kruger (69.57%), Justice Corrigan (65.71%) and Chief Justice Cantil-Sakauye (68.26%).  Justices Werdegar and Chin had an agreement rate of 48.57% and Justice Werdegar and the pro tems were at 40%.

Leaving aside Justice Kennard and Justice Baxter’s short tenures in 2014, the Chief Justice’s closest matches were Justice Corrigan at 85.71% and Justice Chin at 81.63%.  Justice Kruger was next at 70.27%, and two Justices were in the sixties – Justice Werdegar (62.86%) and the pro tems (62.5%).  Chief Justice Cantil-Sakauye’s agreement rate with Justice Cuellar was 54.05%.  The Chief Justice agreed with Justice Liu only 36.73% of the time.

Aside from Justices Kennard and Baxter, Justice Chin’s closest matches on the Court were Justice Corrigan (83.67%) and Chief Justice Cantil-Sakauye (81.63%).  Justice Chin’s agreement rate with the pro tems was 62.5%.  His agreement rate with the two newest Justices was in the fifties – Justice Kruger (56.76%) and Justice Cuellar (51.35%).  Justices Chin and Werdegar had an agreement rate of 48.57%.  Justices Chin and Liu had a rate of 32.65%.

Justice Baxter, in his short 2014 tenure, agreed in all his votes in divided criminal cases with the Chief Justice and Justices Chin, Werdegar, Kennard and Corrigan.  His agreement rate with Justice Liu was 66.67%, and with the pro tems, 25%.

Justice Cuellar’s closest match was Justice Werdegar, at 78.26%.  Three Justices were in the sixties – the pro tems (64.29%), Justice Kruger (64.86%) and Justice Corrigan (62.16%).  Three more were in the fifties – Justice Liu (56.76%), Chief Justice Cantil-Sakauye (54.05%) and Justice Chin (51.35%).

Aside from Justices Kennard and Baxter, Justice Liu’s closest match during these years was Justice Werdegar at 71.43%.  Justice Liu’s agreement rate with his two fellow Brown appointees, Justices Kruger and Cuellar, was the same – 56.76%.  Justice Liu and the pro tems had an agreement rate of 45.83%.  Justices Liu and Corrigan were at 40.82%.  Justice Liu agreed with the Chief Justice in 36.73% of divided criminal cases, and with Justice Chin even less – 32.65%.

Next, we review the numbers for the pro tems.  Four Justices had agreement rates with the pro tems in the sixties – Justices Cuellar (64.29%) and Chief Justice Cantil-Sakauye, Justice Chin and Justice Corrigan (all 62.5%).  Justice Liu was at 45.83%, Justice Kruger at 42.86%, and Justice Werdegar was at 40%.  The pro tems and Justice Baxter had an agreement rate of 25%.

Last time, we proposed a rough measure of how much each Justice was in sync with the rest of the Court during the study period, or alternatively, how much a Justice’s philosophy perhaps diverged from most of his or her colleagues – the arithmetical average of all a single Justice’s agreement rates with his or her colleagues.  Justice Kennard’s part 2014 year puts her first at 96.67%.  Justice Baxter is second at 84.52%.  Next we have Justice Corrigan (74.84%), Chief Justice Cantil-Sakauye (72.64%) and Justice Werdegar (70.71%).  Justice Chin’s average was 68.57%, Justice Kruger’s was 62.01%, and Justice Cuellar’s was 61.68%.  Justice Liu’s average was 54.19%.  The pro tems brought up the rear, with an average agreement rate of 50.69%.

Join us back here next Thursday as we embark on a new topic.  In the meantime, join us at The Appellate Strategist late today for the beginning of a new biweekly series of posts on a brand-new area of analysis.

Image courtesy of Flickr by a200/a77Wells (no changes).

 

Reviewing the Justices’ Agreement Rates in Divided Criminal Cases, 2008-2013

Today, we’re looking at the Justices’ agreement rates in divided criminal cases for the years 2008 through 2013.  As we did on the civil side, since during this period the Court was drawing closer to having its current membership, we present the data Justice by Justice in order to facilitate comparisons.

Justice Corrigan’s closest match during these years was with pro tem Justices at 92.86%.  But of course, that’s a significantly lower number of votes than with her full time colleagues.  Justice Corrigan had an agreement rate in the eighties with four Justices: Chief Justice George (88.24%), Justice Baxter (87.5%), Chief Justice Cantil-Sakauye (84.85%) and Justice Chin (84.72%).  Justices Corrigan and Liu had an agreement rate of 70.83%.  Justices Corrigan and Werdegar were at 65.28%.  Justices Corrigan and Moreno were at 50%.  Justices Corrigan and Kennard were at 40.85%.

Justice Kennard’s closest match on the Court during these years was Justice Moreno, with an agreement rate of 56.41%.  Justice Kennard and Chief Justice Cantil-Sakauye were at 54.55%.  Five Justices were in the forties – Justices Werdegar (49.3%), the pro tem Justices (46.15%), Justice Chin (45.07%), Chief Justice George (42.42%) and Justice Corrigan (40.85%).  Justice Kennard and Justice Baxter’s agreement rate was 39.44%, and Justice Kennard and Justice Liu were at 33.33%.

Justice Werdegar’s closest match was Chief Justice George at 73.53%.  Five of Justice Werdegar’s colleagues were in the sixties – Chief Justice Cantil-Sakauye and Justice Chin at 66.67%, Justice Corrigan at 65.28%, Justice Baxter at 61.11% and Justice Moreno at 60%.  Justice Liu was right behind at 58.33%.  Justices Werdegar and Kennard had an agreement rate of 49.3%, and Justices Werdegar and the pro tems were at 42.86%.

Chief Justice George was closely aligned in criminal cases with Justice Chin (91.18%) and Justice Corrigan (88.24%).  Two Justices were in the seventies – Justice Baxter (76.47%) and Justice Werdegar (73.53%).  Justice Moreno was at 55.88%, Justice Kennard was at 42.42%, and the Chief didn’t vote with the pro tems in any divided criminal case.

Chief Justice Cantil-Sakauye had an agreement rate of 100% in divided criminal cases with Justice Moreno.  The Chief Justice had a rate of 90.91% with Justice Chin, 87.88% with Justice Baxter, 87.5% with the pro tem Justices, and 84.85% with Justice Corrigan.  The Chief Justice and Justice Werdegar agreed in 66.67% of divided decisions, and Justices Liu (58.33%) and Kennard (54.55%) were in the fifties.

Justice Chin had several very high agreement rates – 91.18% (George) and 90.91% (Cantil-Sakauye) with the two Chief Justices during the period, 88.89% with Justice Baxter, 85.71% with the pro tems, and 84.72% with Justice Corrigan.  Justices Chin and Werdegar were at 66.67%, Justice Liu was at 54.17%, Justice Moreno was at (47.5%) and Justice Kennard was 45.07%.

Justice Baxter also had very high agreement rates with several colleagues, including Justice Chin (88.89%), Chief Justice Cantil-Sakauye (87.88%), Justice Corrigan (87.5%) and the pro tem Justices (85.71%).  The remainder of the Court was evenly spread out – Chief Justice George (76.47%), Justice Werdegar (61.11%), Justice Liu (50%), Justice Moreno (45%) and Justice Kennard (39.44%).

As we noted above, Justice Moreno and Chief Justice Cantil-Sakauye had an agreement rate of 100% during these years.  The remainder of Justice Moreno’s Table is lower: Justice Werdegar (60%), Justice Kennard (56.41%), Chief Justice George (55.88%), Justice Corrigan (50%), Justice Chin (47.5%), Justice Baxter (45%) and the pro tems (33.33%).

Justice Liu’s highest agreement rate was with Justice Corrigan – 70.83%.  Four of the remaining Justices were in the fifties – Chief Justice Cantil-Sakauye (58.33%), Justice Werdegar (58.22%), Justice Chin (54.17%) and Justice Baxter(50%).  Justices Liu and Kennard had a rate of 33.33%.

Next, we chart each Justice’s agreement rate with the pro tem Justices.  Justice Corrigan led at 92.86%.  Three Justices were in the eighties (all of them Republican appointees): Chief Justice Cantil-Sakauye (87.5%) and Justices Chin and Baxter (both 85.71%).  Justice Kennard was at 46.15%, Justice Werdegar was at 42.86%, and Justice Moreno’s rate was at 33.33%.  Finally, Chief Justice George had an agreement rate with the pro tems of zero.

So what does all this mean?  One answer is what we’ve seen above – an indication, during a six-year snapshot, of the Justice whose voting record was most and least similar to the subject of each Table in criminal cases.  We conclude with an additional possibility – which Justice was most and least in line with the rest of the Court (and how much in sync was the Court as a whole on criminal cases)?  One suggestive indication is to calculate each Justice’s average agreement rate – the arithmetical average of all that Justice’s agreement rates with his or her colleagues.  If the average agreement rate is high, it indicates that the Justice was often in the majority of divided criminal decisions; if low, then frequently in the minority.

The highest average agreement rate during these years was Chief Justice Cantil-Sakauye, at 78.84%.  Justices Corrigan (73.9%) and Chin (72.76%) were next.  Justice Baxter’s average was 69.11%, Chief Justice George’s was 61.1%, and Justice Werdegar’s was 60.42%.  Three more Justices were in the fifties – the pro tems (59.26%) and Justices Moreno (56.02%) and Liu (54.15%).  Justice Kennard was lowest at 45.28%.

Join us back here tomorrow as we conclude this topic with a look at the years 2014 through 2018.

Image courtesy of Flickr by Teemu008 (no changes).

Reviewing the Justices’ Agreement Rates in Divided Criminal Cases, 2002-2007

Last time, we reviewed the Justices’ agreement rates in divided criminal cases – how many times did each possible combination of Justices vote the same way in criminal cases with at least one dissenter.  This time, we’re looking at the years 2002 through 2007.

Justice Baxter’s agreement rate with Justice Moreno was 65.74%.  He agreed with the pro tems 63.64% of the time.  Justice Brown’s two highest agreement rates were with Justice Chin (72.86%) and Justice Baxter (72.46%).  Chief Justice George and Justice Brown were at 66.67%.  Justice Brown agreed with Justices Werdegar and Moreno 58.57% of the time.  Her agreement rate with the pro tems was 50%, and with Justice Kennard – 37.14%.  Justice Chin had an agreement rate of 88.89% with Justice Baxter, 70% with Justice Moreno and 69.23% with the pro tem Justices.

Justice Corrigan had an agreement rate with the pro tem Justices of 100%.  Justice Corrigan was in the nineties with Justices Chin (92.31%) and Baxter (92%).  Chief Justice George (88.46%) and Justice Baxter (81.31%) were next.  Justices Corrigan and Werdegar had an agreement rate of 73.08%.  Justices Kennard and Moreno were next at 65.38%.  Chief Justice George had an agreement rate of 83.33% with the pro tems, 82.57% with Justice Chin and 77.06% with Justice Moreno.  Justices Kennard and Baxter have an agreement rate of 45.79%.

Justice Kennard had an agreement rate in the fifties with Justices Werdegar (58.18%), Moreno (55.45%) and Chief Justice George (54.13%).  She agreed with Justice Chin in 48.18% of divided criminal cases, and with the pro tems in 46.15%.  Justice Moreno’s agreement rate with the pro tems was 76.92%.  Justice Werdegar’s agreement rate with Chief Justice George was 74.31%.  Next were pro tem Justices at 69.23%, Justice Moreno at 69.09%, Justice Chin at 68.18% and Justice Baxter at 64.81%.

Join us back here Thursday as we complete this subject with a look at the years 2008-2013 and 2014-2018.

Image courtesy of Flickr by Trophygeek (no changes).

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