On the vast majority of appellate courts, there are one or two Justices of whom appellate specialists say “they’re the votes you’ve got to have” – or alternatively, “lose those votes and you’re hurting.” No matter the case, those Justices nearly always seem to be in the majority. There can be at least a couple of reasons for this, of course: either the Justice is well aligned with the majority philosophy on the Court, or a Justice is so persuasive among his or her other Justices that she or he can usually assemble a majority for the Justice’s preferred outcome during the Court’s deliberations.
So who have been the bellwether votes on the Illinois Supreme Court since 1990? This week, we’ll review the civil cases. A few ground rules: in order to keep the math relatively simple, a Justice is defined as being in the majority if he or she agrees with the judgment – even if the Justice files a concurrence saying “I agree with the result, but not with any of the majority’s reasoning.” Second, in order to avoid making these numbers artificially high (since the Court is typically unanimous in anywhere from 55 to 75% of its cases), we limit the data to non-unanimous decisions. Third, “civil” cases are defined (as usual with our data) to exclude quasi-criminal matters which are technically civil proceedings, such as habeas corpus and juvenile justice. And a reminder – a Justice’s first or last year on the Court is not necessarily indicative of anything, since that number is typically based on a relatively few number of cases that Justice participated in. Because we’re trying to answer a question about the individual Justices as opposed to the evolution of the Court, contrary to our usual practice, we arrange the tables by Justice to make it easier to see trends.
In Table 991, we review the data for the first five of the twenty Justices who served between 1990 and 2003: Bilandic, Calvo, Clark, Cunningham and Fitzgerald. Justice Bilandic typically voted with the majority in between sixty-five and eighty percent of divided civil cases during these years. His high came in 1991 – ninety percent – and his low was only two years later, 66.67%. Justice Calvo voted with the majority in 63.16% of divided civil cases in 1990. Justice Clark was typically in the majority in divided civil cases between seventy and eighty percent of the time. In his two years on the Court, Justice Cunningham voted with the majority ninety percent or more of the time. Joining the Court towards the end of this period, Justice Fitzgerald was in the majority in divided civil cases over ninety percent of the time two of three years.
In our next table, we review the numbers for Justices Freeman, Garman, Harrison, Heiple and Kilbride. Aside from a one-year dip in 2001, Justice Freeman’s rate was consistent across the board, ranging from three-quarters to just short of 90%. In her first three years, Justice Garman was in the majority of divided civil cases in 81.82%, 68.75% and fifty percent of cases. Justice Harrison, on the other hand, was typically in the majority of such cases less often – between fifty and sixty percent for the most part (with a low of 28.57% in 1999). After some variation in the years 1990 to 1992, Justice Heiple was generally in the majority between seventy and eighty percent of the time in divided civil cases. Justice Kilbride voted in his first civil case in 2001, and joined the majority in divided cases 61.54%, 68.75% and fifty percent of the time.
In Table 993, we address Justices McMorrow, Miller, Moran, Nickels and Rarick. Although Justice McMorrow was in the majority of divided cases between eighty and ninety-three percent of the time for the years 1998 to 2000, as a general rule, she was in the majority between seventy and eighty percent of the time. Justice Miller’s rate showed an unusual level of variance: two years in the sixties (1991-1992), four years in the seventies (1990, 1993, 1995, 1997), three years in the eighties (1996, 1999-2000) and three years between ninety and one hundred percent (1994, 1998, 2001). Justice Moran’s rate varied only around a three-point band, from 89.47% in 1990 to 92.31% the following year. Justice Nickels generally voted with the majority in divided cases between seventy and eighty-five percent of the time. Justice Rarick, who voted in his first civil case in 2002, was with the majority 100% of the time that year and 90% the next.
Finally, we review the numbers for Justices Rathje, Ryan, Stamos, Thomas and Ward. Justices Ryan, Stamos and Ward all voted in their final divided civil cases in 1990, joining the majority in 70.59%, 81.25% and 76.47% of those cases, respectively. Justice Rathje joined the majority 85% of the time in 1999 and 78.57% in 2000. In his first three years on the Court, Justice Thomas voted with the majority in 83.33%, 76.47% and 71.43% of divided cases.
Join us here next time as we review the data for the years 2004 through 2018.