September 20, 2012
The September issue of California Lawyer magazine contains Santa Clara University law professor Gerald F. Uelmen’s annual article assessing the Court’s performance during fiscal year 2011-2012. The Court’s productivity continued to decline, with 86 opinions filed, down from 98 published the year before, and below “the 100-opinions-per-year average achieved by the George Court.” Uelmen surmises that this decline may be due to the long delay in filling retired Justice Carlos Moreno’s seat, which required “the temporary assignment of a different court of appeal justice for each case up until Justice [Goodwin] Liu’s confirmation on August 31, 2011.” So it turns out we were wrong last year when we predicted the Court’s productivity would surge somewhat in fiscal 2011-2012 as the Chief Justice became able to devote more of her time to drafting opinions, and as Justice Liu took the bench.
But as Uelmen notes, what is most remarkable about fiscal 2011-2012 is not the number of opinions the Court filed, but the record level of unanimity reflected in those opinions. At just 2.3 percent, the total dissent rate was the lowest in the last century, and just one-third of fiscal 2010-2011’s modest dissent rate of 6.9 percent. In 2011-2012, only one case was decided by a 4 to 3 margin, compared with six the previous year. And just one case was decided by a vote of 5 to 2, compared with 11 the previous year. Uelmen observes that this remarkable level of unanimity “may reflect the high proportion of death penalty cases on the docket” or “the deferral of difficult decisions to a later day.”
That certainly may be, but more intriguing is Uelmen’s suggestion that “the replacement of Chief Justice Ronald George and Justice Moreno with Chief Justice Cantil-Sakauye and Justice Goodwin Liu has dramatically altered the fault lines that occasionally divided the court in the past.” In a separate article, entitled “Sizing Up Justice Liu,” Uelmen notes that Liu’s agreement rate with the Chief, and Justices Marvin Baxter, Ming Chin and Kathryn Werdegar “was an impressive 97 percent,” and that he agreed with Justice Carol Corrigan 100 percent of the time. As a result, according to Uelmen, “[t]he only fault line remaining seems to be the one that separates Justice [Joyce] Kennard from the rest of the court.” But query whether any significant fault line exists even there. Uelmen elsewhere notes that Justice Kennard agrees with all of her colleagues at least 90 percent of the time.