SCOCA year in review 2019

Overview

The effect a majority of four justices appointed by Governor Jerry
Brown might have on the California Supreme Court has been a major question in
the past few years. After all, the last time four Brown appointees controlled
the court it endured its most chaotic period in the last century. With the
fourth Brown appointee (Justice Groban) having completed his first year on the
court, we examined the court’s opinions from February 2015 to December 2019 for
evidence that such times are upon us again. We found little support for a
conclusion that another ultra-partisan-liberal Rose Bird era is dawning — in
fact, the evidence so far is to the contrary.

We draw several conclusions:

  • The lineup of four justices appointed by Governor
    Brown and three appointed by other governors has not divided the court. The
    court rarely decides cases by 4–3 votes in any period. And that rate is lowest
    in the Groban period.
  • The court’s degree of consensus remained
    relatively stable across all three periods.
  • Justices Liu and Chin are mirror-image opposites,
    so that Justice Chin’s upcoming retirement is potentially the largest factor in
    Justice Liu’s impact on the court going forward.
  • The court’s opinion output trend remained
    relatively stable during its pro tem interregnum, in that it continued to
    decline.

Methodology

We reviewed all opinions published between February 2015 and December
2019. Year-on-year comparisons are inherently arbitrary, so we divided the
decisions into three periods.

Period BX (post-Baxter with Werdegar) begins after Justice Baxter’s
last vote in December 2014. It runs from the first decision with Justices Cuéllar and Kruger on
February 5, 2015 to Justice Werdegar’s last vote on August 31, 2017.[1]

Period WX (post-Werdegar with pro tems) is the thirteen-month period of
rotating pro tem justices after Justice Werdegar’s last vote in August 2017. It
runs from the court’s first decision with the pro tems filling Werdegar’s seat
on November 13, 2017 until the last pro tem decision on March 28, 2019.

Period GX runs from Justice Groban’s first opinion vote on March 28,
2019 through December 2019.

We looked for trends across all those periods. There are 386 opinions:
213 in the post-Baxter period, 111 post-Werdegar, and 62 with Groban. We discarded some cases (en banc decisions,
for example).

The justices’ votes are categorized by simple majority vote, concurring
and dissenting, concurring, and dissenting; we also counted how many opinions
in each category a justice wrote. We counted all votes and opinions in a case.[2] The
pro tem justices are counted as one justice. We continue to divide the justices
into two groups: senior (the Chief Justice, and Justices Chin and Corrigan) and
Brown (Justices Liu, Cuéllar,
Kruger, and Groban). As our analysis shows, so far that division is proving
illusory.

Analysis

There is no Brown wing — instead, consensus dominates

The 4–3 Brown–senior justice lineup has not divided the court. And the
court’s degree of consensus remained relatively stable across all three
periods. We looked at three metrics for this: all 4–3 vote splits, number of
dissenting opinions, and majority versus non-majority votes.

The court rarely decides cases by 4–3 votes in any period: two in the
Groban period, four in the post-Werdegar period, and seven in the post-Baxter
period. As percentages of the number of cases, those figures are individually
small and relatively close across all three periods.

GX 2/62=3.23%

WX 4/111=3.60%

BX 7/213=3.29%

We were alert for any 4–3 splits in the Groban and post-Werdegar
periods, particularly for decisions with the four Brown justices in the
majority and the three senior justices in the minority. There were none in the
post-Werdegar period, and two in the Groban period.[3]
The result: just two Brown v. senior splits in 173 cases decided since November
2017.[4]
Those exceptions prove the rule that a reliable bloc of Brown justice votes is (as
yet) nonexistent.

The dissent rate changes little across the three periods. If anything, dissents as a proportion of majority opinions is trending downward. The balance of dissents to all opinions is less reliable because Justice Liu’s high number of separate opinions skews the all opinions number higher.

DISSENTS AS PERCENT OF ALL PERIOD OPINIONS
AND OF PERIOD MAJORITIES
GX ALL OPINIONS 80 7/80 (8.75%)
GX
MAJORITIES 62
7/62
(11.29%)
DISSENTS
7
 
WX ALL OPINIONS 155 13/155 (8.39%)
WX
MAJORITIES 111
13/111
(11.71%)
DISSENTS
13
 
BX ALL OPINIONS 307 26/307 (8.47%)
BX
MAJORITIES 212
26/212
(12.26%)
DISSENTS
26

We calculated majority, all separate, and dissenting votes as
percentages of all votes in each period, shown below.[5]

The apparent downward trend in majority votes is deceptive because the
y-axis scale is so small. Except for Justice Liu, the court shows very little
variation in its majority voting rate across the three periods.

We do note a five- to ten-point increase in the rate of separate votes,
which is significant. That arguably cuts against our consensus conclusion,
because it means that justices are signing more non-majority opinions. This is
mitigated by the fact that, as the table below shows, except for Justice Chin
there is no corresponding overall upward trend in dissenting votes.

The increase in overall separate voting is less important than the rate
of dissenting votes. Discounting Justices Chin and Liu (who cancel each other
out, as discussed below), there is no obvious trend in dissenting votes; if
anything, the trend line is flat. Coupled with the consistently low proportion
of 4–3 divided opinions and the low- and flat-rates of dissenting opinions
noted above, we conclude that the court’s decisions are broadly supported by
its members.

Although Justice Groban’s voting record has not yet revealed his
ideology, the fact of his silence is interesting. Justice Groban authored no
opinions in the surveyed period; he filed his first opinion on January 30, 2020.[6] As
a point of comparison, Justice Chin authored six majority opinions in his first
eight months on the court, and Justice Liu started authoring opinions just 90
days after joining the court.

Comparing the three periods

Period BX, post-Baxter with Werdegar: While the raw number of
non-majority votes cast during this era may give the appearance of disagreement
among the justices, this is deceptive. A proportional comparison shows that the
majority-to-dissent ratio has remained consistent across the three periods. And
while there is a greater number of opinions published during this period than subsequently,
this likely is explained by the relative lengths of the periods. The
post-Baxter era spanned two and a half years, from February 2015 until August
2017. And note that Justice Werdegar cast the greatest number of majority votes
(only matched by the Chief Justice at 202) during this period.

Period WX, post-Werdegar with pro tems: The court retained a consistent
proportionality with its voting patterns after Justice Werdegar retired. The pro
tems joined dissenting opinions (5) more than every other justice except for
Liu (11). But otherwise the pro tem justices were remarkably consistent: they voted
with the majority almost 90% of the time. And the voting proportionality
remained consistent with the previous and following periods.

Period GX, with Groban: Voting remained homogenous after Justice Groban
joined the court. Every member (except for Justice Liu) voted with the majority
in over 93% of all opinions: Chief Justice 93.54%, Chin 93.54%, Corrigan
95.16%, Liu 90.32%, Cuéllar
93.54%, Kruger 96.77%, Groban 96.67%. And even then Justice Liu, in the
majority the least in this period, is at 90%. His voting in period WX (81.98%
majority) may be an anomaly, as in the most recent period GX his majority rate
better compares to his voting in period BX (88.26%). This may signal a return
to normal, and that his usual voting practices were interrupted during the pro
tem interregnum. It is too early to more closely analyze Justice Groban given
the limited dataset.

Finally, we compared voting patterns for the pro tems and Justice
Groban in periods GX and WX. The voting patterns are consistent. Both voted
with the majority in 90–96% of cases and cast a non-majority vote in 3–10% of
cases. The pro tem majority voting trend likely flows from two factors: pro tem
justices mostly sit for only one case.[7]
And pro tems should not be the deciding vote in a high court case — note that
they authored no majority opinions. The question for this year is whether this voting
pattern accurately reflects Justice Groban’s views, or if he will perform
differently going forward.

The relative influence of Justices Chin and Liu

Referring
to the per-justice vote graphs above, Justices Chin and Liu are mirror images,
moving in opposite directions to each other. We read this as indicating high
disagreement between these two justices, particularly during the post-Werdegar
period.

That
led us to consider the impact of Justice Chin’s imminent retirement. It is
clear that when the court moves with one of these justices, the other moves in
opposition. Without Justice Chin, will Justice Liu pull the court with him? We
found conflicting evidence for Justice Liu’s effect on the court.

Cumulatively
across all three periods, Justice Liu is first in nearly every category —
importantly, he authored the most majority opinions. And his share of majority
opinions is climbing.

CUMULATIVE 386 TCS Chin Corrigan Liu Cuellar Kruger AVERAGE
ALL OPINIONS 75 82 77 118 74 70 82.67
Majority 60 59 64 65 53 49 58.33
Concurring 4 6 5 28 7 10 10.00
Con/dis 7 6 5 12 8 6 7.33
Dissent 4 11 3 13 6 5 7.00
Total separate 15 23 13 53 21 21 24.33
TCS Chin Corrigan Liu Cuellar Kruger AVERAGE
ALL VOTES 388 387 388 410 399 393 394.17
Majority 365 348 359 335 361 358 354.33
Concurring 6 8 8 39 15 18 15.67
Con/dis 11 14 10 15 12 9 11.83
Dissenting 6 17 11 21 11 8 12.33
All non-maj votes 23 39 29 75 38 35 39.83

We
also compared the relative percentages of each justice’s majority and total opinion
output per period. Again, Justice Liu is the clear outlier: he wrote the most
opinions in all three periods, wrote the most majority opinions in the
post-Werdegar period, and tied for most majority opinions in the other two
periods.

BX TCS Chin Corrigan Liu Cuellar Kruger Werdegar
ALL OPINIONS 307 44 43 45 57 39 35 44
  14.33% 14.01% 14.66% 18.57% 12.70% 11.40% 14.33%
Majority 212 34 31 35 30 26 21 35
  16.04% 14.62% 16.51% 14.15% 12.26% 9.91% 16.51%

WX TCS Chin Corrigan Liu Cuellar Kruger TEMP
ALL OPINIONS 155 19 27 19 41 23 24 2
  12.26% 17.42% 12.26% 26.45% 14.84% 15.48% 1.29%
Majority 111 17 19 16 22 18 19
  15.32% 17.12% 14.41% 19.82% 16.22% 17.12% 0.00%

GX TCS Chin Corrigan Liu Cuellar Kruger Groban
ALL OPINIONS 80 12 12 13 20 12 11
  15.00% 15.00% 16.25% 25.00% 15.00% 13.75% 0.00%
Majority 62 9 9 13 13 9 9
  14.52% 14.52% 20.97% 20.97% 14.52% 14.52% 0.00%

But
there is evidence to suggest the court will not move toward Justice Liu.
He wrote the most separate opinions, which generally indicates less than full
agreement with the court. And he has the high or low scores in three key
consensus indicators: the fewest majority votes, the most dissenting opinions,
the most non-majority opinions, and the most non-majority votes. In general,
Justice Liu is in the majority the least out of all the justices.

Finally, we considered that, once Justice Chin retires, Justice Liu
will find less to disagree with. But that depends largely on whom Governor
Newsom appoints in Justice Chin’s place.

The pro tems did not negatively
impact opinion output

The simplest input and output productivity metrics for the court are
review petitions granted and opinions written: grants are the cases the court
adds to its docket, and issuing an opinion clears a case from the docket. The
court’s opinion output trend remained relatively stable during its pro tem
interregnum, continuing its gradual downward trajectory. We previously found
only weak support for the proposition that the court’s productivity dropped
during the pro tem period. Now that Justice Werdegar’s seat has been filled, we
can see that the pro tems did not cause the court’s opinion output to drop significantly.

More broadly, these metrics show mixed results for the court as a whole.
Two of the above metrics, opinions and grants per year, show declining trends,
and the most recent years are all below the 30-year historical averages. The average
opinions per year is 101.53, but recent years are all well below 100 opinions.
The average number of grants is 79.80, and the trend is below that figure and
declining. The percent granted is trending upward, and the two most recent
years are above the 4.62% average.[8]
The spike in percent granted for FY17 results from the court granting and
holding 368 cases in the period of July 2016 to July 2017, increasing its
all-grants figure to 489 and increasing the grant rate to 12.35% — all of those
figures are by far the highest in their categories in the 30 years of available
data since 1988. This spike falls squarely in the BX period (February 5, 2015
to August 31, 2017). Justice Werdegar’s retirement announcement
on March 8, 2017 may be a contributing factor.

Justice Chin’s legacy

As detailed in an upcoming SCOCAblog article, Justice Chin has left a
lasting impact on the court. He has been a prolific writer from the start of
his 24-year tenure on the court, profoundly shaping criminal law and employment
law and exhibiting a judicial philosophy that transcends binary political
labels. Justice Chin certainly has been a unique voice on the court, and his
departure may result in notable change in the court’s opinions and outcomes
going forward.

Conclusion

We may see a stable period of membership on the court in the near term.
The two remaining senior justices, Justice Corrigan (71) and the Chief Justice
(60), look ready to serve at least another decade or two each. The questions we
will be looking at this year are who Governor Newsom appoints to replace
Justice Chin upon his retirement in August 2020, how Justice Groban integrates
with the other members, and whether the court’s consensus model continues to
hold.

—o0o—

Senior research fellows Stephen M. Duvernay, Brandon V. Stracener, and
the brothers Belcher, and research fellow Nicholas Cotter all contributed to
this article.


[1] The court decided eight cases with pro tems in the
brief period between Justice Baxter’s last vote and Justices Cuéllar and Kruger’s first votes, so we start the
post-Baxter period with the first decision they joined in February 2015.

[2] A “majority” vote is when a justice only
signs the majority opinion. A justice signing the majority and a concurring
opinion is coded as “maj/con” and counts twice: once as a majority vote and
once as concurring. Signing a concurring-and-dissenting opinion counts as one
vote. Even if an opinion is so titled in Westlaw, we looked at whether the
justice concurred in the judgment. Writing a concurring-and-dissenting opinion
counts as one opinion. Writing an opinion is counted as a vote for one’s own
opinion. So if Justice Liu writes the majority, also writes a concurring
opinion, and joins another justice’s concurring and dissenting opinion, that’s
three Liu votes for the case (one majority, one concur, one con/dis) and two
Liu opinions.

[3] In our 2018 review (written before the pro tem period
ended) we found no instances of an all-senior or an all-Brown dissent. It
remained true to the end of the pro tem period that there are no opinions in
which all justices in each bloc unite against each other.

[4] Interestingly, Justice Kruger siding with the seniors
in the majority prevented several would-be 4–3 splits in People v. Aldemat (2019), People v. Armstrong (2019), Hassell v. Bird (2018), and People v. Buza
(2018)
. Note that three of the four
are criminal cases, consistent with our previous analysis that Justice Kruger
is (so far) the most conservative of the Brown appointees on criminal issues.

[5] Because the time periods are different, the total
number of decisions in each period varies widely, and it is not possible to
compare raw subtotals for one justice across periods. So we converted each
justice’s subtotals to percentages of all opinions or votes in a period and
compared those. That permits us to show how a justice’s output changed over
time.

[6] K.J.
v. Los Angeles Unified School District (S241057) January 30, 2020, 2020 WL
479382.

[7] In
period WX, 81 Court of Appeal justices sat pro tem, 26 of them sat twice, and
two sat on three cases.

[8] The disparity between the grants and percent granted
is because the percent granted includes grant-and-hold and grant-and-transfer.
Review granted by the court is a far smaller figure, and it is declining.