By Kirk Jenkins
Kirk C. Jenkins is Senior Counsel at Arnold & Porter Kaye Scholer LLP in San Francisco, and is the President of the California Academy of Appellate Lawyers.
America has always rested upon the proposition that “all [persons] are created equal.” Judicial analytics have a crucial role to play in redeeming that promise by showing the degree to which extra-legal factors such as judges’ personal values, ideology, life experiences, race, and gender impact decision making — a study which has never been more important than now, with the fight for racial and gender equality dominating the news this year.
Academic analysts have studied those issues for nearly a century. In 1922, Charles Grove Haines published a study of over 15,000 public intoxication cases from the New York magistrate courts. He demonstrated that one judge discharged only one of 566 cases, another 18 percent of his cases, and still another 54 percent of his cases — all for precisely the same offense. Robert Erickson showed in a major study that female judges are substantially more likely to vote to find liability in a gender discrimination case than male judges — but that the difference disappears for male judges sitting with at least one female panel member. Another study by Christina Boyd, Lee Epstein, and Andrew Martin reviewed thousands of decisions and came to the same conclusion. Jennifer Peresie has shown that gender of the judge and for men, sitting with at least one woman, is a more significant predictor of votes for the plaintiff in discrimination and harassment cases than whether the judge was a Democratic appointee. Many studies have concluded that members of racial and ethnic minorities are on average sentenced more harshly, holding constant for legal sentencing factors, than White defendants. Other studies have demonstrated racial disparities in the seriousness of charges, the number of companion charges, and bail and bond decisions.
To the credit of our state and our recent governors, the California Supreme Court is one of the most diverse state Supreme Courts in the country. Four of the seven Justices who served in JY2020 were women. For the past two judicial years, the Court’s story has been dominated by the Court’s changing membership. Two years ago, it was the Court functioning with a lengthy vacancy arising from the retirement of Justice Kathryn Werdegar. Last year, it was the possible impact of former Governor Jerry Brown’s fourth appointee, Joshua Groban. In the coming year, it will be the story of the Court adjusting to the retirement of Justice Ming Chin, whose successor has not yet been named. That led us to ask two questions last year: (1) was the Court holding an unusual number of cases during the Werdegar vacancy to await a seventh permanent Justice; and (2) would the Court turn leftwards with the addition of a fourth Brown Justice?
There is little evidence that the Court was holding any significant number of closely divided cases to await Justice Groban’s arrival. In the 2019 judicial year following his arrival, there were only two 4-3 decisions. In JY2020, there have been two civil and one criminal. In contrast, there were four 4-3 decisions in JY2018 and six in JY2017.
For JY2019 before Justice Groban’s arrival, the average lag time from the end of briefing to oral argument in civil cases was 231.4 days. After his arrival, it was 234.73 days. On the criminal side in JY2019, the lag time increased after Justice Groban’s arrival, from 560 to 778 days. In JY2020, the lag time in civil cases was 320.67 days and on the criminal side, it was 594.21 days.
For JY2020, the Court decided 78 cases — 34 civil and 44 criminal. This was a slight increase from last year when the Court decided 32 civil cases and 43 criminal. It’s a significant drop from JY2018 however, when the Court decided 36 civil cases and 49 criminal cases. In JY2017, the Court decided 90 cases — 46 civil and 44 criminal.
The Court decided 17 death penalty appeals, a slight decrease from 20 last year. The Court affirmed 76.47% of those judgments, a slight increase from last year’s 70% affirmance rate. The Court reversed the judgment entirely in one case and affirmed the judgment while reversing the penalty once (the Scott Peterson case). This represents a penalty reversal rate of 11.76% for JY2020. For JY2019, 20% of death penalties were reversed, but in JY2018, the penalty reversal rate was only 5.26%.
Although Los Angeles County was the most frequent origination point for both the civil and criminal docket, the county’s share was significantly down on both sides. For JY2020, Los Angeles originated 18.18% of the civil cases and 16.28% of the criminal cases. Last year, those figures were 31% and 20.93%. Only three other California counties produced more than one case this year: Alameda (12.12%), Orange (9.09%), and San Diego County (6.06%). The criminal docket was more scattered. San Bernardino was second, producing 9.3% of the cases. Six counties accounted for 6.98% apiece: Orange, Riverside, Sacramento, San Diego, Santa Clara, and Ventura. Alameda, San Mateo, and Santa Barbara counties produced 4.65% of the docket.
Last year’s article mentioned that it’s unfair to speak of a one-year “reversal rate” for any intermediate appellate court, since no court of last resort hears more than a few cases a year from any intermediate court. It’s misleading for a second reason — it’s a biased data set. Many of the Supreme Court’s cases are on the docket because the Court is at least initially dubious about some aspect of the Court of Appeal decision. A much more realistic Court of Appeal reversal rate would be to speak of the percentage of a given district’s cases for which a petition for review is filed, granted, and the decision is then reversed. Compared to “review denied” orders, the percentage is quite small for every district and division.
On the civil side, the Court decided eight cases from the First District: three from Division One, one each from Divisions Two, Three, and Four, and two from Division Five. The Court reversed all three cases from Division One, the cases from Divisions Three and Four, and one of the two cases from Division Five. The Court reversed the decision from Division Two. The Court decided six civil cases from the Second District: four from Division Three and one each from Divisions Two and Four. The Court reversed all six. The Court decided four civil cases from the Third District, reversing only one. The Court decided three cases each from Divisions One and Three of the Fourth District, reversing two of three in each division. The Court decided two cases from the Fifth District, reversing both.
On the criminal side, the Court decided three cases from the First District, one each from Divisions One, Three, and Four. The Court reversed the Division Three and Four cases. The Court decided seven cases from the Second District: four from Division Six and one each from Divisions Three, Five, and Eight. The Court reversed three of the Division Six cases and the single cases from Divisions Five and Eight. The Court decided two cases from the Third District, reversing both. The Court decided three cases from the Fourth District, Division One, reversing only one, three cases from Division Two, reversing them all, and one case from Division Three, which the Court affirmed. The Court decided three cases from the Fifth District and two from the Sixth, reversing one case from each.
Nine of the Court’s civil decisions arose from final judgments. Eight were petitions for writs of administrative mandate, and there were six cases each on the docket arising from petitions for mandate and certified questions from the Ninth Circuit. Eighteen of the Court’s criminal cases arose under Penal Code section 1239, subdivision (b) – death penalty judgments. Eleven criminal appeals were taken from judgments of conviction under Penal Code section 1237, subdivision (a). Five cases were Proposition 47 appeals. Two appeals were brought under Penal Code section 1237.5 following a plea of guilty.
Court of Appeal dissents continue to be at least slightly more important on the criminal side than in the civil docket. Two of the 26 civil cases that arose from the Court of Appeal in JY2020 had dissents. Two of 21 Court of Appeal criminal cases had dissents. Five of 29 civil cases arising from the Court of Appeal in JY2019 had dissents, while 5 of 27 criminal cases did. Five of 32 civil cases in JY2018 had dissents, and 4 of 29 criminal cases did.
Similarly, publication was less important on the criminal side than among civil cases. In JY2020, 24 of 26 civil cases that arose from the Court of Appeal were published below. In JY2019, 27 of 29 Court of Appeal cases were published. In JY2018, 28 of 32 Court of Appeal cases were published. Turning to the criminal docket, in JY2020, 19 of 24 Court of Appeal cases were published. Only 14 of 21 cases arising from the Court of Appeal were published in JY2019. In JY2018, 20 of 27 Court of Appeal cases were published.
There still does not appear to be a consistent decrease in the speed with which the Court processes death penalty cases. For JY2020, the average time from filing of the last brief to oral argument was 1117.29 days — higher than in JY2019 (809.1) or JY2018 (1078.94). Non-death criminal cases, on the other hand, moved more quickly this year. The average lag time from close of briefing to oral argument was 216.68 days, and the average lag from grant of review to argument was 603.12 days. In JY2019, the corresponding numbers were 412.43 days and 1009.87 days.
The civil docket slowed down a bit this year. In JY2020, the average wait from the end of briefing (usually meaning a response to an amicus brief) and oral argument was 320.67 days. The previous year, the average lag time was 233.69 days. On average, 619.97 days passed in civil cases between the order granting review and the oral argument.
For most of the JY2020, the Court’s unanimity rate in civil cases was at historically high levels. But with divided decisions in four of the Court’s last five cases, the Court’s civil unanimity rate for JY2020 fell to 82.35%. The rate was somewhat higher in each of the previous two years: 90.63% in JY2019 and 91.67% in JY2018. That two-year jump was a limited phenomenon, however; for most of the years from JY2011 to JY2017, the civil unanimity rate was between 75% and 85%. The reversal rate in criminal cases for JY2020 was 88.37% — an increase over JY2019 (81.4%) and JY2018 (73.47%).
The Court decided issues in a wide variety of civil areas of law in JY2020. Like last year, the most frequent area was civil procedure with 9 cases. There were 6 cases in government and administrative law, 4 tort cases and 3 each in constitutional and employment law. The Court decided 2 civil cases involving commercial law and 1 each in arbitration, domestic relations, election law, environmental law, insurance, and workers compensation.
As usual, the most common area on the criminal docket was death penalty law, with 17 cases. The Court decided 10 issues involving criminal procedure, 8 involving the law of sentencing, 3 cases in criminal constitutional law, 2 habeas corpus cases, and one case each involving process crimes, juvenile issues, and mental health.
Justices Corrigan, Kruger, and Liu led the Court this year, writing 6 majority opinions apiece in civil cases. Justice Cuellar wrote 5 opinions. The Chief Justice and Justice Chin wrote 4 majorities and Justice Groban wrote 3 majority opinions. On the criminal side, Justice Kruger led with 9 majority opinions. The Chief Justice wrote for the Court 8 times. Justices Chin and Liu wrote 6 opinions each. Justices Groban and Corrigan wrote 5 criminal majorities and Justice Cuellar wrote 4.
Concurring opinions were once again rare. On the civil side Justices Cuellar and Kruger wrote 3 apiece and Justice Liu wrote 2. Justice Liu led with 4 concurring opinions in criminal cases. Justice Cuellar wrote 3 and the Chief Justice and Justice Kruger wrote 1 apiece.
Dissents were up slightly. On the civil side, the Chief Justice wrote 4. Justice Liu led in criminal cases with 4 dissents. Justices Chin and Cuellar each wrote one.
Agreement rates were uniformly high this year, given the unanimity rate. The Court handed down one 6-1 civil decision this year, with the Chief Justice in dissent. There were three 5-2 civil decisions — one with Justices Groban and Chin dissenting, one with the Chief Justice and Justice Liu, and one with Justices Cuellar and Liu. Finally, there were two 4-3 decisions: one with the Chief Justice and Justices Corrigan and Kruger in dissent, and one with the three remaining Republican appointees — the Chief and Justices Corrigan and Chin — dissenting.
Amicus filings were down substantially this year, presumably due to the economic conditions in the final five months of the judicial year. The Court accepted 106 amicus briefs in civil cases — an average of 1.91 supporting appellants, one supporting the respondent, and 0.21 supporting neither party. The data on how much amicus support helped was mixed. In affirmances, winners averaged 0.75 amicus briefs in support of their position to 2.5 for losing appellants. In reversals, winning appellants averaged 1.6 amicus briefs to 0.9 for losing respondents.
At oral arguments for civil cases decided in JY2020, the Court asked 625 questions of appellants and 576 questions of respondents, averaging 18.94 to appellants and 17.45 to respondents. Once again, counting questions had at least some predictive value for anticipating the ultimate result in cases. In affirmances, losing appellants averaged 19.5 questions and winning respondents received only 14 questions. Matters were considerably closer in civil reversals. Winning appellants averaged 20.35 questions and losing respondents averaged 20.55.
On the criminal side, winning respondents averaged 9.73 questions in affirmances to 15.91 for losing appellants. In partial reversals, respondents averaged 13.5 questions to 22.5 for appellants. In outright reversals, the usual signal was reversed, as winning appellants averaged 17.75 questions to 15.94 for respondents.
The Court has held oral arguments by video since April, a trend that will continue through at least calendar year 2020. So far, the Court has been significantly less active on video than it typically is when all seven Justices are in the courtroom. The data bears that out. For JY2020 in civil oral arguments prior to the pandemic lockdown, appellants received an average of 25.71 questions. Respondents averaged 23.29. Since the beginning of video arguments, appellants have averaged only 11.75 questions and respondents 11.25.
The change is even more noticeable in criminal cases. Before the lockdown, appellants in criminal cases averaged 22.38 questions to 16.24 for respondents. In video oral arguments, appellants have averaged 5.71 questions to 4.36 for respondents.
We conclude with the question we reserved at the outset: Is there evidence of a Brown Court emerging with a more liberal bent? On the civil side of the docket, the answer is no. Plaintiffs won only one of six civil constitutional law cases in JY2019 and 2020, compared to four of five in JY2018. Plaintiffs won one of five tort cases in JY2019 and 2020, but four of seven in JY2018. Plaintiffs won five of eight government and administrative law cases during the past two judicial years while splitting four cases in JY2018.
On the other hand, there is at least some indication of a subtle shift on the criminal side of the docket. Since Justice Groban joined the Court, the Court has affirmed death penalties 85.71% of the time. In JY2019 prior to Justice Groban’s arrival, the Court affirmed death penalties 92.59% of the time. In JY2018, the penalty affirmance rate was 94.74%. Since Justice Groban took his seat, criminal defendants have won five of six constitutional law cases and six of ten sentencing law cases. In JY2018 and the portion of JY2019 before Justice Groban arrived, criminal constitutional law defendants won three of five cases. Criminal defendants won only three of eleven sentencing cases during that year and a half.
With Justice Chin’s retirement effective at the end of JY2020, the Court will soon experience another personnel shift, this time to five appointees of Democratic governors to only two Republican appointees. Once Justice Chin’s successor is appointed, we will have the most heavily Democratic Supreme Court since January 1987, when Chief Justice Rose Bird and Justices Cruz Reynoso and Joseph Grodin lost their retention elections. However, given the ideological distinctions between the six remaining Justices, it remains to be seen whether the Court’s jurisprudence will shift further.