September 9, 2011
This month’s California Lawyer magazine contains an excellent article by Santa Clara University law professor Gerald F. Uelmen that assesses the Court’s performance during fiscal year 2010-2011, with emphasis on its first six months under the leadership of Chief Justice Tani Cantil-Sakauye. Uelmen notes that the Court’s productivity continued to hover below normal, with 98 opinions filed, which is on par with the 96 opinions published the year before but well below the number typically filed in recent years. Uelmen attributes this drop in productivity partly to the retirement of Justice Carlos Moreno in March but we’re not so sure. Justice Moreno authored as many majority opinions (13) during fiscal 2010-2011 as all but three of his colleagues. Moreover, while no opinions were published in the two months after Moreno’s retirement, that is because the Court issued an unusually high number of opinions before he stepped down. And the Court continued to have heavy oral argument calendars even while shorthanded. So we really can’t say what has caused the relative lack of productivity. But we expect the Court’s productivity to surge somewhat in the coming year as the Chief—who has been busy learning the ropes in her new post, fending off a legislative challenge to the authority of the Judicial Council, and dealing with massive budget cuts—is able to devote more of her time to drafting opinions, and as Justice Goodwin Liu fills the vacancy left by Justice Moreno.
Uelmen notes that the Court’s overall dissent rate was 6.9 percent during fiscal year 2010-2011, up from 3.8 percent the year before. The Court split 4-3 in six cases, all of which were decided during the tenure of former Chief Justice Ronald M. George. In five of those six cases, the crucial swing vote was cast by the Chief himself. Uelmen predicts: “[T]his pattern is likely to continue well into the future, with Chief Justice Cantil-Sakauye assuming the pivotal role played by her predecessor.” If that is so, we can probably expect the Chief to side more often with Justices Marvin Baxter, Ming Chin and Carol Corrigan, whom Uelmen terms the Court’s “more conservative wing.” So far, as Uelmen points out, in 28 decisions, the Chief has voted with those justices 100 percent of the time.