David Carrillo and Stephen Duvernay write in today’s Daily Journal why they think California’s Supreme Court over the last 10 years or so has issued unanimous opinions much more often than the U.S. Supreme Court — “The secret to SCOCA’s consensus.” (Related: last month, the California court had its first 4-3 split in almost two years.)
Carrillo and Duvernay say the court’s “current high . . . unanimity rate is explained mostly by its unique frontloaded case-deciding procedure, with X factors of leadership personality and consensus culture.”
The procedure they refer to is an intensive, collaborative preparation of a draft opinion (called a calendar memorandum) before a case is scheduled for oral argument. That process is largely a function of the constitutional and statutory rule requiring a decision within 90 days of a case’s submission, which usually occurs immediately after the case is argued. (See here.)
The authors also point to “the Chief Justice’s leadership style and the receptiveness of the other six justices to a consensus culture.” “The soft power of being first among equals is the secret sauce,” they conclude.
The authors do allow that “the federal high court confronts divisive national issues that may simply be harder to resolve, suggesting that comparing respective consensus rates is an apples-to-oranges comparison, and that if we controlled for those cases the consensus rates might be closer.”