As they have done each year for several years, in this month’s California Lawyer magazine, Santa Clara University law professors Gerald Uelmen and Kyle Graham assess the California Supreme Court’s performance during the previous fiscal year (July 1, 2014 to June 30, 2015
In that period, they report, the Court decided 73 cases with signed majority opinions, and issue two per curiam opinions, for a total of 75. That is a significant drop from last year, when the Court decided 89 cases. Indeed, Uelmen and Graham observe, this is the lowest number of opinions the Court has issued since fiscal 1987-1988, the year after the divisive 1986 retention election, when the Court was in the process of transitioning from Chief Justice Rose Bird to Chief Justice Malcolm Lucas. No doubt the professors are correct when they observe that the process of replacing Justices Baxter and Kennard with Justices Mariano-Florentino Cuéllar and Leondra Kruger “took its toll on productivity.”
The Court’s overall degree of unanimity was high again in fiscal 2014-2015, as it generally has been since Chief Justice Cantil-Sakauye took the helm. The Court decided more than half its cases this year (65 percent) with Court of Appeal justices sitting pro tem. Uelmen and Graham report that most of those decisions were unanimous, with just seven dissenting votes from Justice Liu, eight from Justice Werdegar, two from Justice Baxter, one from Justice Corrigan, and six from the various justices pro tem. This tide of unanimity only increased after Justices Cuéllar and Kruger joined the Court. Of the 26 opinions authored in fiscal 2014-2015 after they joined, all were unanimous except for two solo dissents by Justice Ming Chin.
Two particular facts that Uelmen and Graham have noted stand out. First, the Chief sided with the majority in every single case decided in fiscal 2014-2015. Second, much like in previous years, only four cases were decided by 4-3 votes. Taken together, these facts say much about the Chief’s view of the proper role of a Chief Justice as a consensus builder and a leader. It also highlights the degree to which she took to heart Chief Justice George’s advice when she assumed her post back in 2010 (for comparison, check out this 2010 post regarding how Chief Justice George handled the decision in In re Marriage Cases (2008) 43 Cal.4th 757).
Examining the justices’ dissent rates, other interesting facts jump out. For example, Justice Goodwin Liu continued to pen a fair number of dissents, dissenting in 9.1 percent of cases. This once again made him second among the justices in total dissents. But despite Justice Liu’s willingness to part ways with the Court’s majority, it was Justice Kathryn Werdegar who filled the top spot previously held by retired Justice Joyce Kennard; Justice Werdegar hit double digits, dissenting in 10.7 percent of cases.
Last year, in view of the retirements of Justices Kennard and Baxter, Professors Uelmen and Graham observed that Governor Brown had “the opportunity to reshape the high court with a less conservative majority.” They predicted “[t]he coming year will see the emergence of a dramatically different California Supreme Court.” This year, they have sharpened that prediction, forecasting a new (liberal) majority will emerge in 4-3 cases, comprised of Justices Werdegar, Liu, Cuéllar, and Kruger. That may well be true, but it was not revealed in fiscal 2014-2015. As Uelmen and Graham note, “[t]he court’s modest calendar from January to June” did not give the new justices much opportunity to cut their judicial teeth.
Yet the roadblock to confirming this prediction is not any perceived unwillingness on the part of the new justices to develop and apply their judicial philosophies. The problem, it seems, lies elsewhere, with Uelmen’s and Graham’s adherence to their usual practice of limiting their analysis to the fiscal year cut-off of June 30 (an approach that allows them to make use of the substantial fiscal year data compiled by the Judicial Council). For example, the decisions issued after Justices Cuéllar and Kruger joined the Court in January—but especially those issued in August (see this post)—suggest that Justice Chin might be on his way to becoming one of the Court’s leading dissenters. Likewise, the Court’s August opinions in People v. Prunty, People v. Blackburn and People v. Tran broke the Chief Justice’s long streak of siding with the majority in every case. Are these signs of a major shift on the Court? Has the new majority that Uelmen and Graham have predicted begun to coalesce? Only time will tell.
The attention-grabbing developments in the Court’s jurisprudence in August, it seems to us, counsel a change in approach for future installments of Uelmen’s and Graham’s annual article. Rather than tracking the Court’s performance from one fiscal year to the next, it makes more sense to track the Court’s performance from September 1 to August 31, which are the dates the Court itself uses as the start and end of its judicial year. By August 31, the Court typically has issued opinions in all cases argued that year.