October 3, 2011

Why are orders granting review almost always unanimous?

As you may recall, a while back we conducted some research to determine how often the justices dissent from the denial of review. This can be meaningful information for practitioners because, by dissenting from the denial of review, a justice signals that he or she believes the question presented is worthy of review. (As this example shows, where the vote is to deny review, the website states that a particular justice was “of the opinion the petition should be granted.”) We found those research results intriguing, not least because some justices almost never dissent from the denial of review while others, like Justice Joyce Kennard, do so often.

This research led us to ask how often justices decline to vote for review in cases where review is granted. (We can’t necessarily call these “dissents,” however. To our knowledge, when review is granted there are occasions when some justices simply do not cast votes in favor of review. We’ll leave it to our readers to decide whether the failure to vote for review should be termed an abstention, a dissent, or a non-vote.) This chart and graph summarize our findings. Once again, Justice Kennard parts ways with the majority of the Court more frequently than her colleagues. But what is far more noteworthy is that she very rarely fails to vote for review in cases where the Court has chosen to grant review—she has done so just three times between July 1, 2010 and June 30, 2011. This contrasts markedly with Justice Kennard’s 54 votes dissenting from the denial of review in calendar years 2008 through 2010. And our research shows it is more or less true across the board that the justices are far more likely to dissent from the denial of review than to fail to vote for review in a case where review is granted.

So why the radical difference depending on whether the Court grants or denies review? One obvious reason is that, where it is clear in conference that a majority favors review to resolve an issue, any justice unsure how to vote will almost certainly conclude there is no reason to part ways with his or her colleagues over an issue that will soon be put to rest in any event. This is especially the case given the fact that, as shown here, only those votes in favor of review are even shown on the Court’s website. (Indeed, for research purposes, we have had to assume a “no” vote when a justice’s name does not appear among the votes for review and the justice’s absence is not otherwise explained.) But perhaps the main reason why the justices rarely fail to support review in a case where review is granted is that, in our experience, the Court usually opts to grant review where it is truly warranted—i.e., when review is “necessary to secure uniformity of decision or to settle an important question of law.” (Cal. Rules of Court, rule 8.500(b)(1).) In such cases, it seems to us, the justices are likely to achieve a consensus that review is needed.

Leave a Reply