Yesterday, we began our discussion of the impact of publication at the Appellate Court on the Illinois Supreme Court’s civil and criminal dockets. We analyzed whether decisions which were published below – presumably, the decisions more open to disagreement – were more likely to lead to dissenting opinions before the Court. Today, we address the question from a somewhat different angle: of the universe of unanimous decisions on each side of the docket, how many were published below?
In Table 232, we report the percentage of published and unpublished Appellate Court opinions in civil cases which were decided unanimously at the Supreme Court. Once again, our result is contrary to our expectation – for most years, all other things being equal, cases published below are more likely to end in unanimous decisions, not less likely. For the years 2000-2002, the numbers are very close; 57.14%, 75.86% and 66.67%, respectively, of cases published below were decided unanimously by the Court. On the other hand, 60%, 72.73%, and 64.29%, respectively of Rule 23 orders – decisions which were unpublished at the Appellate Court – were decided unanimously at the Supreme Court. By 2003, the numbers diverge substantially – 78.38% of published decisions were decided unanimously to only one-third of unpublished decisions. All told, a higher fraction of published decisions was decided unanimously at the Supreme Court in twelve of the sixteen years of our study. 2014 was one of the few years to the contrary – 83.33% of Rule 23 orders were unanimously decided to 73.33% of published opinions – but in 2015, the figures had reversed – 80% of published decisions, 77.78% of unpublished decisions.
Criminal cases were slightly more evenly balanced, but the relationship was the same – a higher fraction of published decisions from the Court of Appeal were resolved unanimously by the Supreme Court than unpublished ones in ten of the sixteen years. As we saw yesterday, the gap was quite large in the unusual criminal docket of 2000 – 57.89% of published decisions were decided unanimously to only 17.91% of unpublished decisions. The following year, there was once again a thirty-point difference – 78.95% of published decisions were resolved unanimously at the Supreme Court to 48.72% of unpublished decisions. In the years that followed, the typical gap narrowed, often amounting to only a few points. In 2014, 81.82% of unpublished decisions from the Appellate Court were decided unanimously by the Supreme Court to 78.26% of published decisions. The following year (just as was the case with civil decisions), the relationship was reversed again – 84.21% of published opinions were decided unanimously to 75% of unpublished opinions.
Join us back here next week as we turn our attention to a new issue in our analysis of the Illinois Supreme Court’s civil and criminal docket decision making.