Like most sectors of the bar, there are certain items of “conventional wisdom” in the appellate bar that everyone has heard (or said themselves). In both Illinois and California, one of those claims is that it’s pointless to seek Supreme Court review of a decision that wasn’t published by the lower court. After all, if the Appellate Court didn’t think the decision was important enough to publish, why would the Supreme Court think it was important enough to decide? On the other hand, if the Supreme Court actually is frequently reviewing Rule 23 Orders, it can be argued that one or more Districts of the Appellate Court aren’t publishing enough of their decisions.
In fact, a substantial portion of the Supreme Court’s civil cases have been unpublished at the Appellate Court for the past thirty years. In only four years of the period (2008, 2011, 2013 and 2017) has Rule 23 Orders’ share of the civil docket dropped below 10%. For the most part, it’s been much higher than that. For example, in 1990, 37.08% of the Court’s civil cases came from Rule 23 orders. The share was 38.18% in 1996 and 39.68% in 1997. In 2001, 43.14% of the Court’s civil cases were unpublished below. Despite the single digits in 2008, 2011 and 2013, 44.44% of the Court’s civil cases in 2014 were from Rule 23 orders. The unpublished share was 20.45% in 2015, 28.57% in 2016, 22.73% in 2018 and has risen to 32.26% so far this year.
Next time, we’ll review the data for criminal cases.