Today, we begin a short break from our analysis of the data from the past seven years’ oral arguments to offer a statistical preview of two of the highlights of the upcoming September term. We begin with Blumenthal v. Brewer, set for the September 23 call of the docket, which poses the question of whether Illinois courts can decide property disputes between same-sex domestic partner relationships. Our detailed summary of the facts and underlying court decisions in Blumenthal is here.
Allegedly, the parties in Blumenthal become domestic partners in 1981 or 1982. One partner attained a law degree, the other a medical degree, and as the years passed, the couple allocated work and family responsibilities to care for their three children.
The parties’ relationship ended in 2008. The plaintiff (a physician) filed suit seeking to partition the home the two parties owned. The defendant, by then a judge, counterclaimed for a constructive trust over the residence and the physician party’s net earnings. The plaintiff successfully argued that Illinois law doesn’t recognize property claims between unmarried domestic partners, citing the 1979 decision Hewitt v. Hewitt. The Appellate Court reversed, holding that Illinois law no longer disfavored the parties’ relationship, and the defendant was merely seeking to assert cross claims for relief that are available to anyone else.
Blumenthal comes to the Court from the Cook County Circuit Court. Year after year, the Cook County Circuit Court has accounted for between forty and fifty percent of the Supreme Court’s civil docket. For the entire fifteen year period from 2000 to 2014, forty-five percent of the Court’s civil docket comes from Cook County.
The Court has decided multiple domestic relations cases every year since 2000. In all, the Court has decided fifty-one domestic relations cases – more than eight percent of the Court’s civil docket. Forty-two percent of the cases accepted by the Court are conservative Appellate Court decisions; fifty-seven percent are liberal decisions. The Court has reversed 73.7% of the conservative decisions it has accepted for review, while reversing only fifty percent of the liberal Appellate Court decisions.
Blumenthal comes from Division Five of the First District of the Appellate Court. For most of the period covered by our database, Division Five has had a lower-than-average reversal rate before the Court. The three-year floating reversal rate for Division Five was at or below fifty percent until 2006, and only briefly exceeded the average reversal rate in 2011-2012. By 2014, the three-year floating average reversal rate had dropped back to only 33.3%. In 2014, Division Five’s cases averaged 5.5 votes for affirmance.
The individual Justices’ voting records in domestic relations cases are consistent with the overall data. Since the Court is reviewing a liberal Appellate Court decision, we first consider the Justices’ voting records in such cases. The data suggests that Justices Burke, Karmeier, Freeman are the most likely to be receptive to reversal in Blumenthal; Justice Burke has voted to reverse 53.3% of liberal Appellate Court decisions, Justice Karmeier 47.4% and Justice Freeman 44.8%. The remaining Justices – Chief Justice Garman and Justices Kilbride, Thomas and Theis – have all voted to reverse in forty-two percent or fewer of the liberal Appellate Court decisions they’ve participated in. (Garman, Kilbride and Thomas 42.3%, Theis 40%).
Not surprisingly given the Court-wide data we reviewed above, the Justices’ have been significantly more willing to vote to reverse conservative Appellate Court decisions. Justices Theis, Burke and Kilbride have all voted to reverse more than eighty percent of the conservative Appellate Court decisions they’ve voted on (83.3%, 81.8%, 81.3%). Chief Justice Garman has voted to reverse in three-quarters of conservative Appellate Court decisions, and Justices Karmeier and Freeman only slightly less (72.7%, 70.6%). Only Justice Thomas has voted to reverse less than seventy percent of the conservative decisions he’s voted on, at 66.7%.
Given the number of years which have passed since Hewitt, the Court’s numbers in deciding domestic relations cases and the individual Justices’ voting records, the appellee would seem to have a clearer potential road to a four-vote majority than the appellants do before the Supreme Court.
Tomorrow, we’ll address another case from the Court’s September 23rd call of the docket: State of Illinois v. American Federation of State, County and Municipal Employees, Council 31.