Last week, we looked at the conventional wisdom which holds that the Supreme Court only reviews published decisions from the Appellate Court. We showed that in fact, Rule 23 orders (the Illinois term for unpublished decisions) are not unheard of on the Court’s civil docket – in a typical year, twenty to forty percent of the civil cases were unpublished below – and are downright commonplace in the criminal docket.
This week, we’re digging deeper on the issue of publication at the Appellate Court. In order to understand better what kinds of cases make it to the Supreme Court despite being unpublished below, let’s compare the reversal rate for published Appellate Court decisions to the reversal rate on unpublished decisions. It’s easy to posit conflicting theories as to how this analysis might come out. Perhaps published decisions are given a harder look by the Court, leading to a higher reversal rate? Or perhaps, given that they’re not precedential, what causes the Court to allow an appeal from an unpublished decision is the view that the case was clearly wrongly decided. If that turns out to be true, one might expect the reversal rate for unpublished decisions to be higher than published ones.
In fact, there isn’t strong evidence for either of these theories, as we see in Table 682. In thirteen of the past twenty-eight years, the reversal rate for published decisions has been higher; in fifteen years, the reversal rate has been higher for unpublished decisions. In 1990, the numbers were almost identical – 60.71% of the published decisions were reversed, and 57.58% of the unpubs were. The next year, the reversal rate for published decisions was flat at 62.79%, while 80% of the unpublished decisions were reversed. By 1993, the two halves of the docket had diverged – 61.29% reversal of published decisions, 14.29% of unpublished ones, but for the next four years, the two sides were quite close. In 1994, 55.56% of published decisions and 41.67% of unpublished decisions were reversed. In 1995, 64.44% of published decisions and 81.82% of unpublished ones were reversed. In 1996, 64.71% were reversed on the published side, 66.67% were reversed on the unpublished side. The following year, 47.37% of published cases and 52% of unpublished ones were reversed.
In 2000, 57.14% of published cases and half the unpublished cases were reversed. The following year, reversals among published decisions were down a bit to 44.83%, while they were static on the unpublished side. In 2003 and 2004, the two sides were nearly equal – 56.76% and 50% for published decisions, 55.56% and 57.14% for unpublished ones. For four of the five years between 2009 and 2013, reversals were at least a bit more common among published decisions than they were among unpublished ones (indeed, none of the Rule 23 orders reviewed in 2008 or 2013 were reversed). In 2014, the reversal rate was exactly two-thirds in both published and unpublished decisions. For 2015, 48.57% of published decisions and two-thirds of unpublished decisions were reversed. In 2016, 45% of published decisions and 25% of unpublished ones were reversed. Last year, half of the published decisions the Court reviewed on the civil side were reversed, but all of the unpublished decisions were.
Join us back here tomorrow as we look at the Court’s criminal docket.