Yesterday, we began our investigation of the importance of dissents at the Appellate Court for litigation at the Illinois Supreme Court. We demonstrated that the often-heard claim that obtaining review at the Court is impossible without an Appellate Court dissent isn’t true, either on the civil or the criminal side. Today, we address a related question: does a dissent at the Appellate Court reliably predict that there will be dissenters at the Illinois Supreme Court?
In Table 227 below, we plot the fraction of the Supreme Court’s non-unanimous and unanimous civil decisions which involved a dissent at the Appellate Court. The table shows that dissent below is not an especially strong predictor of dissent at the Supreme Court. Non-unanimous Supreme Court decisions were more likely than unanimous ones to involve a dissent below for only nine of the sixteen years since 2000. In 2002, 41.18% of non-unanimous decisions involved a dissent below to only 21.21% for unanimous cases. In 2005, one-third of non-unanimous decisions involved a dissent below to 20.51% for unanimous decisions. The following year, 35% of non-unanimous decisions involved a dissent below to 17.24% for unanimous decisions. In the years immediately following 2006, the share of dissents for unanimous and non-unanimous decisions remained quite close. But in 2011, two-thirds of non-unanimous decisions involved dissents below to only 13.79% for unanimous cases. The largest margins for unanimous decisions were in 2003 (40.63% unanimous, 28.57% non-unanimous), 2013 (35% unanimous, 21.43% non-unanimous), and 2014 (19.05% unanimous, 0% non-unanimous).
The data for unanimous and non-unanimous criminal decisions in reported below in Table 228. In contrast to civil cases, dissent below was more common in non-unanimous decisions nearly every year. By 2005, 40% of non-unanimous criminal cases involved dissents below, to 25% for unanimous cases. By 2009, 23.08% of non-unanimous decisions involved dissents to 7.69% for unanimous decisions. In 2011, the margin was even larger – 45.45% for non-unanimous cases to 18.92% for unanimous decisions. In 2013, 23.08% of non-unanimous decisions involved dissents to only 8% of unanimous cases. By 2015, half of non-unanimous cases involved dissents below to 29.63% of unanimous decisions.
Join us back here next week, as we turn to the importance of published decisions from the Appellate Court in the Illinois Supreme Court’s civil and criminal dockets.