Yesterday, we looked at the year-by-year data on the civil side of the docket, asking whether a dissent at the Appellate Court tends to indicate that one or more dissenters are likely at the Supreme Court.  Today, we’re looking at the same question on the criminal side.

In Table 676, we report the absolute numbers – how many unanimous decisions had a dissent below, and how many non-unanimous decisions did.  Although the number is nearly always higher among unanimous decisions, of course, unanimous decisions are far more common in the criminal docket than non-unanimous decisions are.

So in Table 677, we report the same data as a fraction of the whole – what percentage of unanimous and non-unanimous decisions had a dissenter below.  Here, we see indications that on the criminal side, dissent at the Appellate Court actually is a moderately successful predictor that the Supreme Court will be divided – in seventeen of twenty-eight years, the share of non-unanimous decisions which were divided was higher than the share of unanimous decisions.

In 1990, the numbers were nearly equal – 21.82% unanimous decisions, 21.43% non-unanimous.  In 1991, twice as many unanimous decisions had a dissent below – 29.55% of unanimous decisions, 14.29% of non-unanimous ones.  But in 1992, only 9.21% of unanimous decisions had a dissent below, while one-quarter of the non-unanimous decisions did.  In 1993, none of the unanimous decisions had a dissent below, but 14.29% of the non-unanimous cases did.  In 1994, 12.5% of the Court’s unanimous criminal cases had a dissent below, but 20% of the non-unanimous criminal decisions did.

None of the Court’s unanimous criminal decisions in 1995 and 1996 had a dissent below; 9.38% of the non-unanimous decisions in 1995 and 5.88% in 1996 did.  In 1997, 7.89% of the unanimous decisions and 12% of the non-unanimous decisions were divided below.  In 1998, 6% of the unanimous decisions and 9.09% of the non-unanimous decisions were divided below.  In 1999, 20.83% of the unanimous decisions and 6.9% of the non-unanimous decisions were divided.  The following year, 8.7% of the unanimous decisions and 6.35% of the non-unanimous decisions had dissenters below.

In 2001, 11.43% of the Court’s unanimous criminal decisions and 4.35% of the non-unanimous decisions had a dissent below.  In 2002, the numbers were similar: 13.16% of unanimous decisions, 6.25% of non-unanimous decisions.  In 2003, 14.29% of unanimous decisions and 13.33% of non-unanimous decisions were divided below.  In 2004, 25.53% of unanimous decisions had a dissent below, but 40% of the non-unanimous decisions did.  In 2005, a quarter of the Court’s unanimous criminal decisions had a dissent, but 36.36% of the non-unanimous decisions did.  In 2006, 19.44% of the unanimous decisions and 28.57% of the non-unanimous decisions were divided below.  In 2007, one quarter of the unanimous criminal decisions and 37.5% of the non-unanimous decisions were divided.  In 2008, the sides of the criminal docket were virtually identical – 26.19% of the unanimous decisions and one-quarter of the non-unanimous decisions were divided below.  In 2009, only 7.5% of the unanimous criminal decisions were divided below, but once again, a quarter of the non-unanimous decisions were.

In 2010, 31.71% of the unanimous criminal decisions and 28.57% of the non-unanimous decisions had a dissenter below.  The following year, 18.92% of the unanimous decisions had a dissenter below, but nearly half of the non-unanimous decisions did (45.45%).  In 2012, 21.74% of the unanimous decisions were divided, and forty percent of the non-unanimous decisions were.  In 2013, 17.86% of the unanimous decisions had a dissenter below, but none of the non-unanimous cases did.  In 2014, 22.22% of the unanimous decisions and 28.57% of the non-unanimous decisions were divided below.  In 2015, 29.63% of the unanimous criminal decisions and half of the non-unanimous decisions were divided.  In 2016, 21.43% of the unanimous decisions and 14.29% of the non-unanimous decisions were divided.  Last year, the two sides of the criminal docket were nearly identical – 20% of the unanimous decisions and 22.22% of the non-unanimous ones had a dissenter below.

Join us back here next week as we continue our ongoing analysis of the Court’s decision making.

Image courtesy of Flickr by RussellStreet (no changes).