We can now do a six-month assessment of the impact of the recent personnel changes at the Supreme Court.  New Justices Mariano-Florentino Cuéllar and Leondra Kruger were sworn in on January 5, but this can be called a six-month review because the court has just finished issuing opinions in all cases argued between January and June.  So far, the new justices’ effect on the outcome of the court’s cases has been limited.

When Governor Jerry Brown swore in Justices Cuéllar and Kruger, he said, “What I’m looking for is insight and growing wisdom over time so we can create a measure of harmony in what is a very conflicted society.”  Harmony is probably the key attribute of the court since January.

Of the 50 opinions issued in cases argued from January to June, there were disagreements about a disposition in only 7 cases, and one of those 7 — People v. Nguyen — hardly counts because Justice Cuéllar there agreed with the affirmance of the death penalty, but thought the court should have reversed one of many of the defendant’s convictions.  In only four would the outcome have changed had retired Justices Joyce Kennard and Marvin Baxter both voted differently than their replacements.  (And two of those cases — People v. Blackburn and People v. Tran — could be counted as one, because they raised closely related issues and were decided at the same time.)

In each of the six cases where there was a serious disagreement with the result, Justice Ming Chin was in the minority.  He dissented alone in People v. Le (concerning firearm and gang enhancements) and In re R. V. (minor’s competency to stand trial).  In the cases where Justices Cuéllar and Kruger’s votes with the majority possibly made a difference in the outcome, Justice Chin dissented with Chief Justice Tani Cantil-Sakauye in People v. Prunty (criminal street gang enhancement) and in People v. Blackburn and People v. Tran (automatic reversal because of inadequate jury trial waivers), and with Justice Carol Corrigan in Lee v. Hanley (statute of limitations for actions against attorneys).

There were also a number of cases with what could be called grudging concurrences, that is, agreements with the majority’s bottom line but not enough agreement to sign the majority opinion.  Justice Chin wrote two of those separate opinions, in California Building Industry Association v. City of San Jose (affordable housing ordinance) and Sanchez v. Valencia Holding Co. (the enforceability of arbitration agreements), and Justice Corrigan did so in Prunty.  But Justice Goodwin Liu is the grudging-concurrence leader, alone in Coffey v. Shiomoto (DUI evidence) and J.R. Marketing, L.L.C. v. Hartford Casualty Insurance Company (insurer suit against Cumis counsel for excessive fees), with Justice Kruger in People v. Scott (Batson juror exclusion challenges), with Justices Kathryn Werdegar and Kruger in State Department of State Hospitals et al. v. Superior Court (public liability for murder committed by a parolee), and with Justice Cuéllar in People v. Leon (jury questionnaire and voir dire).

One case in which the addition of Justices Cuéllar and Kruger to the court definitely made a difference is People v. Grimes.  The court granted rehearing in that death penalty case, which had been decided hours before the new justices joined the court. Although they had not participated in the opinion, Justices Cuéllar and Kruger were able to rule on the rehearing petition and they voted with the dissenters — Justices Werdegar and Liu — to rehear the case.  Of course, the result in Grimes, which has yet to be re-argued, ultimately might not change, because a vote for rehearing doesn’t guarantee a vote for a different outcome.

Although the addition of the new justices led to a rehearing in Grimes, it’s notable that there were four other cases in which Justices Cuéllar and Kruger could have caused a rehearing, but did not.  In each of those cases, Justice Kruger didn’t vote for rehearing; Justice Cuéllar voted for rehearing in two of them.

Justice Kruger has also been more reticent than Justice Cuéllar in voting for review.  We believe she has recorded a dissenting vote from the denial of a petition for review only once.  Justice Cuéllar has done so at least three times. (Here, here, and here.)

The addition to the court of Justices Cuéllar and Kruger has thus likely changed case outcomes, but the number of those cases has been limited, at least so far.