Last time, we demonstrated that notwithstanding the frequently heard claim that seeking review of a Rule 23 (unpublished) decision from the Appellate Court is a hopeless task, anywhere from ten to forty percent of the Court’s civil docket has consisted of Rule 23 orders for the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  In 1990, 44.93% of the criminal docket was unpublished below.  From 1991 to 2003, the unpublished share was over half every year, reaching a high of 77.78% in 1998.  Beginning in 2004, the unpublished share of the docket dropped to between thirty and forty percent, but it was between forty and fifty percent from 2007 to 2010.  In 2011, 54.17% of the Court’s criminal docket was unpublished below.  In 2013, 2014, 2016, 2017, 2018 and so far in 2020, the unpublished share of the criminal docket was between thirty and forty percent.  Only 2019 was a true outlier, as the unpublished share of the docket dropped to 19.05% – a thirty-year low.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.

Image courtesy of Pixabay by Goodfreephotos (no changes).

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In fact, a substantial portion of the Supreme Court’s civil cases have been unpublished at the Appellate Court for the past thirty years.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.

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Yesterday, we reviewed the data on Justice Neville’s question patterns since joining the Court in civil cases.  Today, we’re looking at the criminal side.

Justice Neville has not been a particularly active questioner thus far in criminal cases.  He more heavily questions the eventual loser when he’s in the majority of criminal cases, although the difference isn’t large.  He averages 0.1 questions to appellants, 0.05 to appellees in affirmances; and 0.28 to appellees, 0.12 to appellants when he’s in the majority of a reversal.  When he joins a split result, he averages 0.13 questions to appellees and none to appellants.  He has been in the minority six times so far in criminal cases, but he has asked no questions in any of the corresponding oral arguments.

Join us back here next Tuesday as we begin work on another issue.

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This week we’re concluding our trip through the Justice-by-Justice oral argument analytics data to determine whether it’s possible to predict when a particular Justice is dissenting (although Justice Michael Burke replaced Justice Thomas earlier this year, there is too little data so far to reach any conclusions about his arguments).  Today and tomorrow, we’re looking at Justice Neville’s numbers, first for civil cases, then for criminal cases.

So far, Justice Neville has not been particularly active in civil cases.  When he’s voting with the majority to affirm, he averages 0.1 questions to appellants and 0.05 to appellees.  When he’s joining the majority in an affirmance, it’s 0.28 to appellees, 0.12 to appellants.  When he’s in the majority of a split decision, he averages 0.13 to appellees and none to appellants.

So what about dissents?  It turns out Justice Neville has been in the minority only twice in civil cases – one an affirmance, one a reversal.  He asked no questions in oral argument in either case.

Join us back here tomorrow as we review Justice Neville’s criminal case oral arguments.

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This time, we’re reviewing the data for Justice Theis’ question patterns in criminal cases.

When Justice Theis agrees with the majority in an affirmance, she follows the expected pattern, averaging 3.22 questions to appellants and only 1.38 to appellees.  However, she breaks from the pattern in reversals, more heavily questioning the winner – 3.02 to appellants, 2.66 to appellees.  When Justice Theis joins the majority in a split result – affirmed in part, reversed in part – her numbers are almost identical – 2.3 questions to appellants, 2.23 to appellees.

Once again, in most cases where Justice Theis breaks with the majority, she more heavily questions the side she is voting against rather than the eventual loser.  When the majority affirms but she votes to reverse, she averages 7.33 questions to appellees, 2 to appellants.  When the majority reverses but she votes to affirm, she averages 3.38 to appellants, 2.13 to appellees.   When the majority affirms only in part, but Justice Theis votes to affirm completely, she averages 4.5 questions to appellees, 0.5 to appellants.  In our remaining two combinations – reversal by the Court, split vote by Justice Theis, and split result from the majority, vote to reverse by Justice Theis – she has asked no questions at all.

Join us back here next week as we continue our tour through the individual Justices’ oral argument data.

Image courtesy of Flickr by Chris Bartnik (no changes).

This week, we’re reviewing Justice Theis’ history in oral arguments in civil cases.  Having established that the party which gets more questions at argument overall is likely to lose, we’re trying to determine (1) whether each individual Justice follows that same pattern when she or he agrees with the majority; and (2) when he or she dissents, does the Justice more heavily question the side the Justice thinks should lose, or the side the majority believes should lose?  This week, we’re looking at the data for Justice Theis, civil cases first.

When Justice Theis agrees with the majority in a civil affirmance, she follows the expected pattern, averaging 3.98 questions to appellants and 1.54 to appellees.  She follows the same pattern in reversals, but just barely, averaging 2.27 questions to the appellees (the losing party) and 2.24 to appellants.  When she joins the majority in a mixed result – affirmed in part, reversed in part – she averages 2.91 questions to appellees and 2.84 to appellants.

When Justice Theis dissents in a civil case, she shows a clear tendency to more heavily question the side she is voting against rather than the eventual loser.  When the majority affirms but she votes to reverse, she averages 4.57 questions to appellees and only 0.29 to appellants.  When she dissents from a reversal, she averages 3.38 questions to appellants and 0.88 to appellees.  Only two other combinations of result and vote appear in the data, both very small samples.  When the majority returns a split result and Justice Theis votes to affirm, she averages 5.5 questions to both appellants and appellees.  In the very few cases where the majority affirms but Justice Theis wants to reverse in part only, she has asked no questions of either side.

Join us back here next time as we turn our attention to Justice Theis’ data in criminal cases.

Image courtesy of Flickr by Rick Obst (no changes).

In criminal cases where the Chief Justice is voting with the majority, she tends to question the appellant more heavily regardless of the result – a break with the expected pattern.  When joining an affirmance since the Court first started posting oral argument videos, she has averaged 1.71 questions to appellants and 1.08 to appellees.  When joining a reversal, she has averaged 1.75 questions to appellants and 1.62 to appellees.  When joining in a split result (“affirmed in part, reversed in part”), she has averaged 1.37 questions to appellants and 0.88 to appellees.

When Chief Justice Burke dissents from an affirmance or reversal, the pattern flips.  When the majority affirms but she votes to reverse, she averages 3.54 questions to appellees and 1.35 to appellants.  When the majority reverses but she votes to affirm, she averages 2 questions to appellants and only 1.18 to appellees.

When the majority affirms but the Chief Justice votes for a split decision, she averages 2.11 questions to appellants and 0.11 to appellees.  When the majority reverses but she votes for a split decision, she averages 1 question to appellants, none to appellees.  When the majority returns a split decision but the Chief Justice votes to reverse, she averages 3.5 questions to appellants and none to appellees.  Finally, when the majority returns a split decision but the Chief Justice votes to affirm outright, she averages 0.8 questions to appellants and 0.6 to appellees.

Join us back here next week as we continue reviewing the individual Justices’ oral argument statistics.

Image courtesy of Flickr by Dave & Margie Hill (no changes).

For the past few weeks, we’ve been reviewing the oral argument data on individual Justices, trying to determine whether it’s possible to predict from the analytics whether a particular Justice is likely to dissent.  This week, we’re looking at the numbers for Chief Justice Burke.

When the Chief Justice is in the majority, we see the expected patterns.  In an affirmance, she averages 2.74 questions to appellants and 1.24 to appellees.  In a reversal, she averages two questions to appellees and 1.78 to respondents.  When she joins the majority in a split result (“affirmed in part, reversed in part”), she averages 2.05 questions to appellants and 1.64 to appellees.

When the Chief Justice dissents in a civil case, the results are clear – she more heavily questions the appellant regardless of her own views of the case.  When the majority affirms but she votes to reverse, she averages 1.64 questions to appellants, 0.55 to appellees.  When the majority reverses but she votes to affirm, she averages 4.6 to appellants, 1.3 to appellees.

As always, the data on split results is scant.  But when the majority affirms but the Chief Justice wants a split result, she averages one question to appellants and none to appellees.  When the majority returns a split result but the Chief wants to reverse outright, same thing – one questions to appellants, none to appellees.  And when the majority decides on a split result but the Chief Justice wants to affirm outright, she averages 4.5 questions to appellees and only 0.5 to appellants.

Join us back here next time as we review the data for the Chief Justice’s criminal cases.

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Today, we’re reviewing the pattern of Justice Karmeier’s questions in oral argument on criminal cases.

When Justice Karmeier joins the majority of a simple affirmance or reversal, his questions show the expected pattern – he tends to more heavily question the losing side.  In affirmances, he averages 1.88 questions to appellants and 0.68 to appellees.  In reversals, he averages 1.82 to appellees and 1.36 to appellants.  In the slightly less clear case of when Justice Karmeier joins a split decision – affirmed in part, reversed in part – he averages 1.98 questions to appellees and 1 to appellants.

When Justice Karmeier is in the dissent in a criminal case, he tends to more heavily question the party he thinks should lose rather than the party which will lose.  When the majority affirms and he votes to reverse, he averages 1.8 questions to appellees and 0.8 to appellants.  When the majority reverses and he votes to affirm, he averages 2.29 to appellants and 0.57 to appellees.  When the majority returns a split decision but Justice Karmeier votes to affirm outright, he averages 1.5 questions to appellants and 1 to appellees.

Join us back here next week when we’ll continue our review of the individual Justices’ oral argument records.

Image courtesy of Flickr by Patrick Feller (no changes).

For the past few weeks, we’ve been reviewing the oral argument questioning of individual Justices, attempting to answer this question: if the Court as a whole is likely to more heavily question the party who will lose the case, what about Justices planning to dissent from that result?  This week, we’re looking at Justice Karmeier’s recent history.

Although Justice Karmeier is usually not an especially active questioner at oral argument, we see the expected patters when he joins the majority.  In affirmances, he averages 1.65 questions to appellants and 1.08 to appellees.  In reversals, he averages 1.52 questions to appellees, 1.19 to appellants.  But when Justice Karmeier dissents from the majority, that result is flipped – he more heavily questions the party he believes should lose, not the party the majority believes should lose.  When the majority affirms a decision he believes should be reversed, Justice Karmeier averages 0.93 questions to appellees and 0.67 to appellants.  When the majority reverses but he wants to affirm, he averages 2.38 questions to appellants and only 0.5 to appellees.

As with most Justices, there are many fewer data points with mixed results (where either the majority or the dissenting Justice wants to affirm in part and reverse in part).  Where Justice Karmeier joins the majority in a mixed result, he averages 1.16 questions to appellants and 1.07 to appellees.  In the very few cases where the majority reversed but Justice Karmeier preferred to affirm in part, he averaged 1 question to appellees and none to appellants.  Where the majority rendered a split decision but Justice Karmeier wanted to affirm, he averaged 12 questions to appellants and only 2 to appellees.

Tomorrow, we’ll take a close look at the data for Justice Karmeier’s arguments in criminal cases.

Image courtesy of Flickr by Carol VanHook (no changes).