Yesterday, we began our further examination of the Court’s experience with cases with a dissent at the Appellate Court.  We asked whether civil cases with a dissent were systematically more or less likely to be reversed than cases which were decided unanimously.  Today, we’re asking the same question on the criminal side of the docket.

As shown in Table 685, the answer on the criminal side is quite clear: cases with a dissent below are more likely to be reversed at the Supreme Court – in many years, twenty to forty percentage points more likely.

In 1990, divided cases were reversed 60% of the time.  Unanimous decisions were reversed in 42.59% of cases.  In 1991 and 1992, decisions with a dissent were once again much more likely to be reversed – 53.33 and 81.81% for divided decisions to 23.26 and 45.68% for unanimous ones.  1993 was one of the few years that unanimous decisions were more likely to be reversed – unanimous decisions were reversed in 28.57% of cases while no cases with a dissent were reversed.

In 1994 and 1995, again cases with a dissent led in reversals – 50 and 66.67% for divided cases to 45.45 and 38.16% for unanimous ones.  In 1996, 33.96% of unanimous decisions were reversed, but no divided decisions were.  In 1997, two-thirds of divided criminal cases were reversed, while only 36.84% of unanimous ones were.  In 1998, 80% of divided decisions were reversed.  Only 38.81% of unanimous decisions were.  In 1999, 71.43% of decisions with dissents were reversed, while 39.13% of unanimous decisions were.  The pattern took a one-year break in 2000, as one-third of cases with dissents were reversed to 39.24% for unanimous decisions, before reasserting itself from 2001 to 2005.  In 2001, 80% of divided decisions were reversed to 35.85% of unanimous decisions.  In 2002, 71.43% of divided decisions were reversed, while only 39.68% of unanimous decisions were.  In 2003, 77.78% of decisions with dissents were reversed, but only 32.14% of unanimous ones were.  In 2004, fully 88.89% of decisions with a dissent were reversed.  Only 47.73% of unanimous decisions were.

In 2005, 43.75% of criminal cases with a dissent were reversed, while 46.51% of unanimous decisions were.  Following that, divided decisions were more likely to be reversed for each of the next eight years.  In 2006, 63.64% of divided decisions and 53.85% of unanimous decisions were reversed.  In 2007, 87.5% of divided decisions and 65% of unanimous decisions were reversed.  In 2008, 69.23% of divided decisions were reversed, but 48.65% of unanimous decisions were.  In 2009, two-thirds of decisions with a dissent below were reversed, while 47.83% of unanimous decisions were.

The sides were close in 2010 – 44.44% of divided decisions and 40.54% of unanimous decisions were reversed – but the pattern quickly reasserted itself.  In 2011, two-thirds of divided decisions were reversed, while 47.22% of unanimous decisions were.  In 2012, 55.56% of divided decisions were reversed, and 45.83% of unanimous decisions were.  In 2013, every criminal case with a dissent below was reversed, while 51.52% of unanimous decisions were.

In 2014, 38.46% of unanimous decisions were reversed, while 37.5% of divided decisions were.  Between 2015 and 2017, divided decisions have been more likely to be reversed each year.  In 2015, 72.73% of divided decisions and 68.18% of unanimous decisions were reversed.  In 2016, 85.71% of decisions with dissents were reversed, and 60.71% of unanimous decisions were.  Last year, the Court reversed 57.14% of decisions with a dissent below and 40.74% of unanimous decisions.

Join us back here next Tuesday as we turn our attention to a new topic.

Image courtesy of Flickr by StantonTCady (no changes).