Last week, we began our analysis of the impact of publication at the Appellate Court level on the Illinois Supreme Court’s civil and criminal dockets. Today, we look at a related question – are published Appellate Court decisions a good predictor that the Illinois Supreme Court’s decision on the case will be divided? One would expect that the answer would be yes – at least in theory, a published decision should be more likely to be controversial, and therefore liable to spark dissent.
In fact, the answer may be no. In Table 230 below, we report the percentage of unanimous and non-unanimous Supreme Court civil decisions for each year from 2000 to 2015 which were published at the Appellate Court. In twelve of the sixteen years, the percentage of published decisions among the unanimously decided cases is higher than the percentage for non-unanimous decisions. For many years, the difference was not great; for example, in 2001, 57.89% of the unanimous cases were published below to 53.85% of the non-unanimous cases. Although the margin briefly widened in 2003 – 90.63% for unanimous decisions, 57.14% for non-unanimous – non-unanimous decisions briefly had a higher percentage of published decisions in 2004 and 2005. Beginning in 2007, the margin widened again. Published decisions were ten percent more of the unanimously decided cases in 2007, 5% in 2008, 22% in 2009, 14% in 2010, 8% in 2011 and 13% in 2012. More recently, the numbers have narrowed again. Two-thirds of all non-unanimous civil decisions were published below in 2014 to 52.38% of unanimous ones, and in 2015, 80% of all unanimous decisions were published below to 77.78% of non-unanimous ones.
The relationships in the criminal docket are somewhat different. The fraction of the docket which arises from published decisions is lower on the criminal side from start to finish than it is on the civil side. At the beginning of our study period in 2000, almost none of the Court’s substantial number of non-unanimous decisions arose from published Appellate Court decisions (this is to a degree a result of the death penalty docket). Nearly half of the unanimous decisions were published below, while only 12.7% of the non-unanimous decisions were. Two years later, the numbers had nearly equalized – 44.74% of unanimous decisions were from published decisions below to 43.75% of non-unanimous ones. All told, non-unanimous decisions had a higher publication percentage below in six of the sixteen years between 2000 and 2015 – 2006, 2007, 2010-2012 and 2014. In 2015, 64% of the unanimous decisions arose from published decisions below, as compared to half of the non-unanimous decisions.
Join us back here tomorrow as we address the issue of unpublished Appellate Court decisions from yet another angle.