Last time, we demonstrated that notwithstanding the frequently heard claim that seeking review of a Rule 23 (unpublished) decision from the Appellate Court is a hopeless task, anywhere from ten to forty percent of the Court’s civil docket has consisted of Rule 23 orders for the past thirty years. So what about criminal cases?
It turns out publication is nearly irrelevant to assessing a criminal decision’s chances of getting Supreme Court review. In 1990, 44.93% of the criminal docket was unpublished below. From 1991 to 2003, the unpublished share was over half every year, reaching a high of 77.78% in 1998. Beginning in 2004, the unpublished share of the docket dropped to between thirty and forty percent, but it was between forty and fifty percent from 2007 to 2010. In 2011, 54.17% of the Court’s criminal docket was unpublished below. In 2013, 2014, 2016, 2017, 2018 and so far in 2020, the unpublished share of the criminal docket was between thirty and forty percent. Only 2019 was a true outlier, as the unpublished share of the docket dropped to 19.05% – a thirty-year low.
So bottom line: is it more challenging to persuade the Supreme Court to review a Rule 23 order? At least in civil cases, on balance, yes. But is it impossible? Not by a long shot.