Last week, we tracked the number of constitutional law cases on the civil side of the Court’s docket, year by year since 1990. This week, we’re looking deeper at the data. What kind of constitutional law cases has the Court tended to take, and has the Court tended to reverse more regularly, depending on who won the case below?
We code all the Court’s cases as conservative or liberal decisions, both at the Appellate Court and the Supreme Court. Unlike criminal law, this doesn’t lend itself directly to dividing the cases as decisions for the plaintiffs or defendants. For example, a decision for a plaintiff challenging a government regulation or program as a taking would be coded as a conservative result, while a decision for a plaintiff challenging the constitutionality of a consent statute for blood tests for drivers would be coded as a liberal result.
In Table 702, we report the Court’s yearly number of civil constitutional law cases in which the Court affirmed a conservative result. For the entire period, the Court reviewed seventy-five conservative Appellate Court decisions in civil law and eighty-one liberal decisions. The Court reversed forty-eight percent of the conservative civil con law decisions it reviewed for the entire period, but 61.73% of liberal civil con law decisions. The Court affirmed one conservative civil law decision in 1990, five in 1992, two in 1994, one each in 1995 and 1997, three each in 1996 and 1998, two each in 2001 and 2003, one each in 2002 and 2004, three in 2005, two in 2006, three in 2008 and 2010, one per year in 2011, 2012 and 2013 and three cases in 2014.
In Table 703, we report the yearly reversals of conservative constitutional law decisions on the civil side. The Court reversed three times in 1990, once per year from 1991 to 1993, three times in 1004, twice in 1995, three times in 1996, once in 1997 and three times each in 1998 and 1999. The Court reversed once each in 2000 and 2001, twice in 2002, once in 2004 and 2007, twice per year in 2008 and 2009, once in 2014, twice in 2015 and once each in 2016 and 2017.
In Table 704 and 705, we review the data on the Court’s review of liberal Appellate Court decisions. The Court affirmed two liberal decisions per year in 1990, 1992 and 1994, one in 1993 and 1995, three in 1996, six in 1997, two per year in 2003 and 2004, one per year in 2005, 2006, 2007, 2010, 2013 and 2015, and four in 2016.
In Table 705, we review the yearly data on reversals of liberal Appellate Court decisions in civil constitutional law cases. The Court reversed four times in 1990, once in 1991, three in 1992, once in 1993, 1994 and 1995, five times in 1996, once in 1997, five times in 1998, three times in 1999 and 2001, once in 2002 and 2003, three times in 2004 and 2005, twice in 2006, three times in 2008, once per year from 2010 through 2013, twice in 2015, once in 2016 and twice in 2017.
In Table 706, we reorganize the data to look at the overall reversal rate in civil constitutional law cases (note that the number of cases here doesn’t always match the numbers above because of cases which reached the Supreme Court without an Appellate Court decision, such as petitions and certified questions). The Court has decided 162 civil cases since 1990 primarily involving constitutional law questions. It has reversed entirely in 78 of those cases and reversed in part in another 20, for a reversal rate of 60.49% – several points higher than the Court’s typical reversal rate in the docket as a whole. As the data shows, in many years, the Court has generally taken civil constitutional law decisions in order to reverse them. For example, in 1990 and 1991, the Court reversed in 12 of 15 cases – over 80%. The reversal rate dropped from 1992 through 1997, but ticked up again for several years after. The Court reversed ten of fourteen decisions in 1998, all seven cases it heard in 1999 and 2000 and eight of ten cases in heard in 2001 and 2002.
The Court reversed constitutional law decisions at a somewhat slower clip than the rest of the civil docket from 2003 to 2012, reversing only 51.11% of the time. Since that time, the Court has reversed in whole or in part in twelve of twenty-one civil constitutional law cases, a reversal rate of 57.14%.
Join us back here tomorrow as we turn our attention to the Court’s constitutional law cases on the criminal side of the docket.